The Trump victory is bringing a lot of hyperventilating on
the web about the Supreme Court nominations he might make. Some people are sure
he will pick religious bigots who will overturn Roe vs Wade and do other
illiberal things. That seems unlikely to me, though there are no doubt a few of
the more religious-right Republican Congressmen who hope for that.
But there is an important division in jurists that is worth
considering. This division, in somewhat
simplified form, is between:
1) Judges
who think that it is the function of the court to see the Constitution as a
living document, and interpret it – or re-interpret it – in the light of
changing circumstances and changing social values. These are sometimes called “activist” judges,
and in recent years liberals have depended on them to push through views that
they can’t get through Congress.
2) Judges
who think it is the function of the court to interpret the law and the
Constitution as it is written, and no more – not to “expend” or “reinterpret”
what is written. These judges feel it is
the job of Congress (and the states in the case of Constitutional amendments)
to create new law, and that it is inappropriate for the court to, in effect,
“create new law”. These are sometimes called “strict constructionists”.
There are valid arguments for both positions. The framers of
the Constitution did intend for new law to come only from Congress, ratified by
the President. This is because these are
elected officials, held accountable at each election to the people, while the
judges are appointed positions, not directly accountable to the voters.
On the other hand, some important social advances have come
from the Supreme Court when the state and federal legislatures simply couldn’t
muster the majority needed to get it though.
Roe vs Wade (abortion) and Brown vs Board of Education (desegregating
schools) are two recent examples. So there are reasonable arguments for an
activist court as well.
What is probably true is that a Trump administration will
favor strict constructionists in its nominations. Liberals will label them
“conservative”, but that really isn’t accurate because it doesn’t really mean
they will necessarily be ideologically biased toward conservative causes – just
that they will interpret the existing law and Constitution as it is written,
and not try to “expand” it with creative interpretations, as liberals sometimes
hope.
In fact, if one looks at voting records, it would appear it
is the four more liberal Supreme Court justices who are perhaps the more
ideological, because they more often vote as a block, while the four more
conservative justices disagree with one another more often.
I guess on balance I favor appointing strict
constructionists. I really do think new
law should come exclusively through elected legislators, and if a law can’t get
a majority of support from the legislatures (and in the case of changes to the
Constitution, from the states) then it probably shouldn’t be implemented
“through the back door” instead by 9 unelected judges.
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