Originalism and Activism
Judge Alito's character, personal history and legal learning look solid at first glance. They'd better be. He's been drafted to headline in a political steel cage match.
Somehow the Supreme Court has ceased to be nine citizens who judge whether the laws are constitutional, and has become, in many people's minds, a Balkanized bench where identities and political causes must be seated, and balance, not wisdom, is the ideal.
The two Alito opinions destined to receive the most attention are ACLU v. Schundler, a church-state separation case, and Planned Parenthood v. Casey, dealing with abortion laws.
Both cases cover topics where the high courts have been accused of judicial activism. Somehow, with a straight face, the judges discovered, like Baby Moses in the bullrushes, a right to abortion hiding among the amendments Thad Stevens pushed through in the 1860s to wring slavery out of the South and punish ex-Confederates.
Judicial activism presumes democratic processes as insufficient. It tempts judges to do an end run around precedents and change the laws to suit their politics or their sense of fairness. It vitiates common law, the foundation of American and British jurisprudence.
The weapon knows no party. It can as easily be wielded by social conservatives, as in the recent circuit court finding justifying a federal anti-porn law with a shameless appeal to the Commerce Clause because the camera used to make the movie was purchased out-of-state.
But on the other side of the scale, dogmatic originalists are just as dangerous, in part because in many cases no one knows what the Founders would have thought about important modern issues.
Prayer in schools? The Founders knew what prayer was. But a state-controled and mandatory network of education would have made their powdered wigs spin around. Abortion? If they had an opinion, they kept it to themselves.
Originalists risk falling into the Potter Stewart obscenity trap: “I know it when I see it.” But we don’t all see alike.
The result is remarkably like judicial activism. You start with the desired result, then work backward to legal justification.
A reasonable originalism is a good thing. Our quick reading of Alito's rulings show him as certainly a conservative, but not an activist, and certainly an originalist, but probably not as extreme as Justice Antonin Scalia, to whom he has been compared.
Supreme Court decisions about abortion, ultimately, should not be about what Madison or Thad Stevens thought. Rather, such decisions should be a matter of distilling the whole evolution of law in America in 200 years, and broad modern interpretations of individual and societal rights. They should take into account genetics as well as legal philosophies.
Somehow the Supreme Court has ceased to be nine citizens who judge whether the laws are constitutional, and has become, in many people's minds, a Balkanized bench where identities and political causes must be seated, and balance, not wisdom, is the ideal.
The two Alito opinions destined to receive the most attention are ACLU v. Schundler, a church-state separation case, and Planned Parenthood v. Casey, dealing with abortion laws.
Both cases cover topics where the high courts have been accused of judicial activism. Somehow, with a straight face, the judges discovered, like Baby Moses in the bullrushes, a right to abortion hiding among the amendments Thad Stevens pushed through in the 1860s to wring slavery out of the South and punish ex-Confederates.
Judicial activism presumes democratic processes as insufficient. It tempts judges to do an end run around precedents and change the laws to suit their politics or their sense of fairness. It vitiates common law, the foundation of American and British jurisprudence.
The weapon knows no party. It can as easily be wielded by social conservatives, as in the recent circuit court finding justifying a federal anti-porn law with a shameless appeal to the Commerce Clause because the camera used to make the movie was purchased out-of-state.
But on the other side of the scale, dogmatic originalists are just as dangerous, in part because in many cases no one knows what the Founders would have thought about important modern issues.
Prayer in schools? The Founders knew what prayer was. But a state-controled and mandatory network of education would have made their powdered wigs spin around. Abortion? If they had an opinion, they kept it to themselves.
Originalists risk falling into the Potter Stewart obscenity trap: “I know it when I see it.” But we don’t all see alike.
The result is remarkably like judicial activism. You start with the desired result, then work backward to legal justification.
A reasonable originalism is a good thing. Our quick reading of Alito's rulings show him as certainly a conservative, but not an activist, and certainly an originalist, but probably not as extreme as Justice Antonin Scalia, to whom he has been compared.
Supreme Court decisions about abortion, ultimately, should not be about what Madison or Thad Stevens thought. Rather, such decisions should be a matter of distilling the whole evolution of law in America in 200 years, and broad modern interpretations of individual and societal rights. They should take into account genetics as well as legal philosophies.
Labels: Supreme Court
