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September|October 2004
The Scalias Court By Stephen B. Presser
Kerry's Even Keel By David Strauss
Dull and Duller By Mark Tushnet
The Passion Of Father Paul Shanley By JoAnn Wypijewski
Litigation By Loan Shark By Daniel Brook

The Scalias Court

Bush understands that justices should interpret laws and protect our liberties the way the founders intended.

By Stephen B. Presser

I WILL VOTE FOR GEORGE W. BUSH INSTEAD OF JOHN KERRY because I still believe in the rule of law, and I want to do whatever I can to preserve it. Bush sewed up my vote when he promised, during the last presidential election, that he would seek to nominate judges who would limit their roles to interpreting the law, and that his two model judges were Supreme Court Associate Justices Antonin Scalia and Clarence Thomas.

Many readers of this magazine will likely be skeptical of the notion that judges should only interpret, and not make, law. For the last 70 years or so, we have been taught in law schools and elsewhere in universities that law is what judges say it is, that judges should respond to the felt necessities of the times, and that judges have considerable discretion over what they decide. Beginning with Oliver Wendell Holmes, Jr.'s The Common Law
in 1881, and accelerating with the virtual deification of Holmes by legal realists in the '30s and New Deal liberals in the '40s, the belief that the job of a judge is to passively decide according to pre-existing legal or constitutional rules has come to be thought naïve at best, and perverse at worst. On a local radio show, when I said that I actually believe that judging is different from legislating, Dennis Hutchinson, who teaches law at the University of Chicago, claimed that I must be the last person in the legal academy who clings to this anachronistic view.

Yet as Holmes conceded, in the last part of his famous 1897 "Path of the Law" speech at Boston University, when you study law you can perceive "echoes of the infinite." By this he meant that there is a part of law divinely ordained and not fully graspable by mere humans. In the first part of that speech, Holmes had suggested that "what the courts will do in fact" is basically what ought to concern lawyers. But in speaking of the infinite, he hinted at his own grander belief.

Even the legal realists, after seeing the horrors of Nazi Germany, came to believe that all government officials, whether executives, legislators, or judges, did not have boundless discretion, and should be restrained by certain principles of what used to be called natural law. The notion that pre-existing legal and constitutional standards derive from custom, tradition, morality, or the prior acts of the political sovereign, in our case the people, ought to bind all private and public actors—that is, the rule of law itself—is the most basic of these principles. A belief in it is not only not naïve; it is the essential precondition for civilized society, and our best defense against the arbitrary use of power.

Judges do and should have some discretion, of course. But, at least if the Baron de Montesquieu, James Madison, and Alexander Hamilton got it right, when faced with a matter on which there is no authoritative rule, it's the job of the judge to leave the making of such a rule to the more popular branches of government, particularly the legislature. In the greatest advance in political science in the last 300 years, Montesquieu wrote (quoted by Madison in The Federalist No. 47 The Federalist No. 78) that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."

For the last half-century, the American people have lost some liberty because our courts have been remaking the legal and constitutional rules with regard to race, religion, and abortion, just to mark out three key areas of controversy. Scalia and Thomas are the two Supreme Court justices whose opinions suggest that they understand best the deeper consequences of these rulings. With these justices as his models, I see President Bush as a defender of liberty and of the rule of law.

Senator Kerry has been under pressure to make as a litmus test for his nominees to judicial office the belief in a constitutionally secured right of privacy in general, and a federally guaranteed right to be free to terminate a pregnancy in particular. It also strikes me, from his rhetoric and votes in the Senate, that his views on the judiciary are influenced by, if not the same as, those of the Democrats now dominating the Senate Judiciary Committee.

This is not encouraging. In recent Senate subcommittee hearings, Democratic senators including Richard Durbin from Illinois, Edward Kennedy of Massachusetts, Patrick Leahy of Vermont, and Charles Schumer of New York have articulated a view of the judiciary that I believe to be fundamentally wrong. During the brief recent period when the Democrats controlled the Senate, Schumer presided over the initial hearing on a topic that he designated as "judicial ideology." He argued that many of the conservatives Bush was nominating to the lower federal courts manifested a judicial ideology that would unbalance the federal courts if nominees with a different ideology did not accompany them.

For the Democrats, an understanding that it is the job of the judiciary to alter the Constitution to meet the changing needs of the times, and to extend rather than to overturn recent rulings regarding race, religion, and abortion made by the Supreme Court and other federal courts—a belief in a "living constitution" —was the better and preferred judicial ideology. Put simply, they want judges who are committed to legislate policy preferences favored by the Democrats.

The position that Schumer and his colleagues staked out was that a nominee brought before them has a "burden of proof" that he or she does not possess a pernicious judicial ideology. Unless that burden is met, a nominee should not be confirmed. I was one of the witnesses before Schumer's subcommittee who testified that "judicial ideology" is a misnomer, and that the only questions senators should address are the nominee's belief in the rule of law, the nominee's understanding that it is not the job of courts to make law, and the nominee's objective qualifications for office (a distinguished record in law school, in practice, or on a lower court).

Since I believe that the appropriate "judicial philosophy" (a term I prefer to "judicial ideology") stresses the rule of law and the separation of adjudication from legislation, I also believe that it's the only appropriate philosophy. To talk of balancing "judicial ideologies" is to say we must balance right with wrong, or popular sovereignty with the exercise of arbitrary power.

THERE IS NO DENYING THAT JUDGING IN OUR REPUBLIC has become highly political, and that the Senate Democrats can rally their base by claiming they will fight the nominations of judicial candidates who might overrule Roe v. Wade, or who might outlaw affirmative action, or who might allow religion further into the public square. And the same can be said of the Republicans, with their defense of the nominees whom Democrats oppose. Alexis de Tocqueville famously observed in the 1830s that there was no political dispute in America that did not sooner or later end up in the courts. That's now been turned upside down. These days, there are few important judicial decisions not subjected to partisan politics. This isn't good for the courts, and it is anathema to the rule of law.

My personal preference is to further remove the judiciary from politics and to return judging closer to the objective enterprise conceived of by the framers. Both parties have made the judiciary a political issue, but the Republicans at least have the virtue of envisioning judges in the constitutional role sanctioned by and Hamilton in The Federalist Papers. That's good enough for me. Most people in the academy and many on the federal bench believe that you can't "turn back the clock" to the view that judging should be different from legislating. But I hold with C. S. Lewis that you not only can turn back the clock, but that you should when it fails to give you the correct time. If the Constitution or the laws are to be changed, it should be by the constitutionally approved mechanisms—amendments or legislative acts.

There are, of course, critics of the Rehnquist Court who claim that in rulings like its rejection of parts of the federal Violence Against Women Act, the Court has been more "activist" than even the Warren Court. By this charge, these critics suggest that the Rehnquist Court is engaging in the kind of judicial legislation I'm excoriating. But when justices are seeking to return the Constitution to its original understanding, as the majority did in the Rehnquist Court's federalism decisions, they are not legislating. They are following the people's will as expressed in their Constitution—as The Federalist No. 78 mandates.

These days, the Supreme Court, believing itself to be progressive, stoutly cites—as a guide to the formation of constitutional law in general and the right to privacy in particular—the infamous "mystery passage" from the 1992 ruling of Planned Parenthood v. Casey. The plurality opinion in that case states: "At the heart of liberty is the right to define one's own concept of existence, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they found under the compulsion of the state."

But if modern social science has taught us anything, it is that we take our values not from within ourselves, but from the culture into which we are born and from our fellows, and, for those of us who believe in a higher power, from our God. The radical individualism—or more properly, the naïve lunacy—of the mystery passage is a prescription for anarchy and chaos, not the rule of law. The mystery passage and decisions based on it give license to judges to make law or change the meaning of the Constitution at will, and thus to reduce American liberty. Antonin Scalia and Clarence Thomas understand this, and so does George W. Bush.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law, and the legal affairs editor for Chronicles: A Magazine of American Culture.

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