In Public Remarks, Two Supreme Court Justices Defend the Federal Courts' Actions in the Schiavo Case - and One Attacks the Court and His Fellow Justices

By EDWARD LAZARUS

Thursday, Apr. 28, 2005

During a relatively rare public appearance last week, Justices Sandra Day O'Connor, Antonin Scalia, and Stephen Breyer spoke to the American people and Congress. They addressed the spate of sharp criticism that some political and religious leaders have leveled at the judicial branch in the wake of the legal drama surrounding Terri Schiavo's death.

Justices O'Connor and Breyer gave the kind of response one usually hears from the Justices - and other defenders of the federal courts. Such criticism is nothing new, they said. Making tough, and potentially unpopular, decisions comes with the job of being a federal judge.

Accordingly, criticism of the decisions, and judges, from those disappointed with court rulings is an inevitable consequence of no particular importance. (With respect to the Schiavo case, in particular, I would also add that - as I explained in an earlier column - such criticism is deeply unfair on the merits. With Terri's Law, Congress put the federal judges in an unfair position, where they had little choice but to rule as they did, and be scapegoated for it.)

Justice Scalia, however, broke from the customary script. In so many words, he declared that recent attacks on the Court are, in essence, fully justified. Indeed, he suggested the Court itself had virtually invited such attacks with its unprincipled approach to the Constitution.

Justice Scalia's Comments: A Direct Attack on His Fellow Justices

According to Scalia, the Court's insistence on interpreting the Constitution as having an "evolving" meaning is the culprit here. He argues that this interpretive method has given unelected judges the power and opportunity to impose their own personal political views on the law, often at the expense of the political judgments of elected officials.

Scalia has pointed, especially, to two recent decisions. One was Roper v. Simmons, striking down the juvenile death penalty. Another was Lawrence v. Texas, granting constitutional protection to consensual acts of gay sex.

To Scalia, the approach to the Constitution represented by decisions like these is completely indefensible. Accordingly, he thinks the current attacks on the court represent a natural and inevitable decision by "the people" to affirmatively restrain an out-of-control and overly political judiciary.

This is not a new message. Robert Bork expressed much the same view 20 years ago. Indeed, Bork's preferred jurisprudence of "original intent" - which Scalia once again endorsed last week - is routinely touted as the antidote to the problem of judicial overreaching.

According to its adherents, original intent jurisprudence alone can prevent judges from imposing their own views on the Constitution. It does so, they argue, by directing judges to determine the Constitution's meaning not by referring to some "evolving" societal consensus, but simply by asking what the Framers would have thought about a particular constitutional question.

Yet while the debate may not be novel, it takes on new meaning in the context of the current high anxiety about the future of the federal courts. Not since the 1960s, by my reckoning, have elected leaders made it their practice to threaten to impeach judges for their decisions.

Moreover, it has been longer still since the issue of the judiciary has threatened the very functioning of another branch of government. Now, however, the Senate hovers on the brink of implosion over the issue of whether the minority party's tradition power to filibuster judicial nominees, so that it can force moderate choices, will (and legally can) be taken away - so that extremists can be put through.

Has the Court Run Amok? The Extent to Which Scalia Is Right - and Wrong

In short, this is especially an appropriate time to consider whether Scalia is right, and the Court has indeed run amok.

The answer, in my view, is that he's part right, part wrong - and also part of the problem.

The part Scalia has right is that the current situation is not, as some justices would have it, business as usual in the federal judiciary, and at the Supreme Court in particular.

The Supreme Court, to an unusual if not unprecedented degree, has become a political lightning rod in a storm-filled political culture. This is not merely the consequence of the Court deciding cases foisted upon it - as O'Connor and Breyer seem to have suggested. It is not accurate to say the Court has had controversy thrust upon it; rather, with its choice of which cases to review, it has, in a sense, embraced controversy and sowed division.

The Court's docket is discretionary (except for the few cases that fall, according to the Constitution, under its "original jurisdiction.") It has the authority to decide not to review cases, and it selects only about a hundred - or fewer - each Term to review. If it decides not to review a case, it need not give any reason for doing so. And there are important cases for which review is sought, that are not very controversial at all - they concern how to read certain statutory language, for instance - yet offer the Court an opportunity to helpfully resolve splits among the federal courts. So if the Court wants to keep a low profile, yet still have influence, it easily can.

Once, there was a time when the Court employed various techniques to duck highly controversial cases. That practice is almost non-existent now. And the decision to give it up is plainly a conscious choice by the Justices - at least four of whose votes are necessary for the Court to accept a given case.

The current Court takes on pretty much every high-profile political case that comes its way (the Schiavo matter is the exception proving the rule). Indeed, sometimes, most obviously in Bush v. Gore, the Court even injects itself into contentious and highly political matters where some might say it had no proper role to play at all.

In our society, it now seems that every moral and ethical issue is transformed at some point into a legal dispute. No wonder, then, that the Court is seen by the public -- and apparently sees itself -- both as the ultimate arbiter of the terribly important disputes that arise about the structure of our government (such as the power of the executive branch in the war on terror), and as the ultimate referee in our culture wars.

The Responsibility of Those Who Embrace Controversy - and the Court's Failure to Live Up to It

It may be that this is a defensible, or largely defensible role for the Court to play. But the role brings with it heightened responsibilities. A Court that is placed or places itself so consistently as having the last word on issues of deep moral and political contention bears a commensurate duty to justify its exercise of power, and to ensure that its decision-making is as divorced as humanly possible from partisan considerations.

It can hardly be denied that the Court has failed to live up to this responsibility. Just look at the two most momentous decisions of the modern era: Roe v. Wade and Bush v. Gore. In both cases, the Court decided questions of extraordinary political and social importance using transparently inadequate rationales. (My analyses of the failings of Roe can be found in a prior column; a previous column also addresses the problems with Bush v. Gore.)

Even the best of opinions in these two cases would have generated controversy and bitter feeling. But to have them decided so peremptorily and unpersuasively only invited charges of illegitimacy.

Mounting Evidence Suggests Some Justices Allow Politics to Affect Their Legal Views

Moreover, the more information comes to light about the internal workings of the Court in the modern era, the more it becomes evident that the justices themselves have, at times, allowed political considerations to affect their decision-making.

With the public release of the Justice Harry Blackmun's papers, for example, we now know that Blackmun thought some of his colleagues were playing politics with the abortion issue in the 1992 case of Planned Parenthood v. Casey, which raised the issue of whether the Court was prepared to overturn Roe. (Blackmun, the author of Roe, of course played special attention to Roe's fate.)

In Blackmun's view, Chief Justice Rehnquist was maneuvering to delay the case so that, if the Court decided to overturn Roe, the decision would not issue until after the 1992 presidential election. That way, it would be too late for the Democratic nominee (Bill Clinton, as it turned out) to galvanize the women's vote by blaming a conservative Republican Court for Roe's demise.

As it turned out, the case was not delayed and the Court decided against overturning Roe; the votes of Justices O'Connor and Kennedy were crucial. But the fact that Roe still stood, did not stop Blackmun from engaging in some partisanship of his own.

In his own separate opinion in Casey, Blackmun overtly courted the electorate, basically imploring them to vote Democratic so that the Court would remain pro-choice in the future. "I am eighty-three years old," he wrote. "I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." A more direct political appeal from a sitting Justice, can hardly be imagined.

Though Problems Exist, Original Intent Is No Solution

Given these apparent and serious problems with the state of judicial decisionmaking, it is tempting to jump on the Scalia bandwagon. Is Scalia right, then, that we should decry the unprincipled exercise of judicial discretion in interpreting the Constitution, and embrace originalism as just the hands-tying discipline necessary to bring the courts in line?

There's only one small rub in all this: Originalism is pretty much a sham. The truth is that originalists - despite the professed objectivity of their enterprise -- engage in all kinds of subjective, value-laden judgments when interpreting the Constitution.

To note just a few of these: Originalists still have to decide how to reconcile the often conflicting views of the Constitution's various Framers, and how to apply the set of views selected to modern legal problems many of which were beyond imagining 220 years ago when the document was written. Originalists still have to wrestle with how to give meaning to the Constitution's many indeterminate terms and concepts, such as "equal protection" and "due process," which intrinsically have no universal and set definition - and certainly were given none by the Framers. And if this were not enough, originalists have to deal with the paradox that it seems to have been the intent of the Framers not to have the meaning of the Constitution decided by means of original intent.

In short, replacing a jurisprudence based on an evolving Constitution with a jurisprudence based on a search for original intent simply substitutes one set of value judgments for another. Both systems permit judges to impose their personal views on the Constitution under the guise of "interpretation."

The Part Scalia Plays In Causing the Very Problem He Decries

At the end of the day, then, there is not -- and never will be -- a "values-free" way to interpret the Constitution. (And, for that matter, why should there be? Should - or could -- a document partly designed to ensure justice be interpreted entirely without reference to values and morality?) Nor will there ever be a panacea for the abuse of judicial power.

The integrity of judicial decision-making will always depend on the good faith of the judges who serve us. In particular, it will hinge on the sincerity of their efforts to provide coherent, consistent, and persuasive rationales for the often politically sensitive decisions they render.

And this is where Scalia becomes part of the very problem about which he so loudly complains. By so effusively embracing originalism as a cure-all for political judging, he is cloaking the value judgments that underlie his own judicial decision-making in the guise of objectivity. That is, in itself, a political act, especially in these fraught times, and only exacerbates the problem he claims to be curing.

In the current debate on judging and judges, Diogenes is still searching.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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