"Living Document" doesn't mean "nihilist"
This is perhaps the most cyncial column I've ever read by Professor Erwin Chemerinsky (I have no experience reading his co-author, Catherine Fisk, and cannot discern her contribution to this article). Their article in USA Today on August 23, 2005 is a brief for judicial nihilism more than anything else, particularly because it was written for a non-lawyer audience. In their article, which tells us how "judges make law and always have," they showed little understanding as to how a non-lawyer audience will respond to such a statement as they expressed it.
For example, the professors write:
"Supreme Court justices must interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms that protect 'liberty' or prevent government from the 'establishment of religion' or from imposing 'cruel and unusual punishment.'"
This is in support of their point that "judges make law." Well, yes, these constitutional terms are vague terms (as I argued here). However, 200 years of jurisprudence have made these terms and phrases far less vague than when Madison wrote Federalist Paper no. 37 (see again my post).
I now return to the professors' ultimate ending statement that set me on edge:
"We can disagree over court decisions. We should debate the kind of law that John Roberts would make as a member of the country's most powerful court. But we should do so in a way that accurately reflects what everyone knows about the legal system: Judges do make law and always have." (Italics mine)
Here the professors are at least implying, if not expressly stating, that judges are "making law" the way the legislature do. The professors know this is wrong, but don't say so in any way that a non-lawyer would recognize. For example, courts must work with and as much as humanly possible, respect and defer to precedent, i.e. previous higher court opinions. While the US Supreme Court has less fealty to precedent, nonetheless, precedent is highly prized for any justice's opinion on a given case. Further, courts must use legislative history and interpretative tools in applying statutes to facts before them. Both of these examples are clearly unlike legislatures, which can decide to completely revamp or reject previous law and rewrite the law almost at will, or at least political will.
With so many people believing that "living document" means "nihilism," the professors' clever rhetoric reenforces the negative view of what it means when one says the US Constitution is a living document.
What then does it mean to have a constitution be a "living" document, especially since the two professors won't define it, either?
To this trial attorney, a liviing document means what the esteemed professor Ronald Dworkin was talking about when he spoke of judges maintaining "integrity" in the law. More specifically, this means that if one is a justice at the US Supreme Court and hearing only 50 to 80 cases a year, that justice ought to think and read an awful lot before deciding a case--and should actively take part in oral argument and use one's practical life experiences, which hopefully are more broad than we've seen too often in Supreme Court justices in recent decades (Justice William Douglas being a bad example of practical life experience, for reasons Dworkin has written elsewhere, but not available on the web).
A justice who wishes to maintain integrity in the law must first and foremost review and understand the facts of a given case by giving due credence to not only the briefs of the parties, but the briefs of experts and other amicus briefs from interested outside parties. Too often, we allow ourselves to let our ideology lead and denigrate facts that may interfere with our ideology. The facts, however, are often vital to helping us understand the limits of our ideological views and to recognize that we often have competing ideologies within each of us; meaning our ideologies conflict more often than we think!
After the facts are reviewed, we must review, analyze and parse the text of the law to be applied, particularly when concerning ourselves with a statute or a constitution (whether state or federal). However, unlike so-called texturalists, one does not end one's analysis there. One must also consult court precedent. If there is none, or if there is something that precedent has not covered, one must then consult legislative history, US general history and sub-histories (womens', black, labor, business, etc.) and understand how political battles shape people's points of view at different times in US history. When deciding matters such as abortion or creationism, one must also consult theological and scientific history, and understand the role of the judge should be to limit the court's involvement in such matters as opposed to displacing God and nature.
As I said in my previous post on originalism, a judge, in addition to the above, should be honest in putting oneself in the shoes of those he/she might rule against. The judge should live with the view of those on the possible losing end by analyzing the consequences of abuse of following the rule of law that favors the ones who may prevail. This exercise re-exposes one's own biases and forces a vital reexamination of...you know, the facts as well as the often competing law to be applied. It may also cause the judge to realize that overturning a precedent could have terrible consequences that are unintended (a trait that should appeal to people who style themselves "conservatives," no?).
If one follows these rules, and is in a position to find someone coming from a different ideological bent (which is usually the case with not only the competing briefs of parties, but the aforementioned amicus briefs), one can, using good faith--or integrity--reach decisions most of the time that can be understood by those who disagree as well as agree with the decisions.
I now get back to Judge Roberts: If Judge Roberts was replacing Rehnquist, I'd say give him the seat. Now. But, we just had a very close election where even Republicans who voted for Bush II a second time around want to maintain the right to privacy (not merely Roe v. Wade); do not want to have the Court return to a crabbed, non-originalist, late 19th Century view of the commerce clause, nor want to give the executive a wide-open deference with regard to personal (as opposed to economic) liberty. Replacing O'Connor with Roberts on two of these three main constitutional issues moves the Supreme Court further right (I'd even say on the commerce clause, Roberts could be more right-wing than O'Connor, based upon his "contracts" clause law review article).
Does this sound "political" and lacking in "integrity"? Yes. But I'm not dealing with how Judge Roberts should behave on the bench when I discuss the upcoming Senate hearings. I'm dealing with the political question of whether the Senate should confirm Judge Roberts to a lifetime appointment on the US Supreme Court. If the Senate engages in "politics" in choosing to decide whether to give a person a lifetime tenure judgeship on the Supreme Court, that is perfectly appropriate. The funny thing to me is that pundits want judges to be political, but Senators to be deferring and held to legal standards they should be holding for judges!
It is also funny to me that most people who know me think I'm a "radical" on many things, particularly economics. But, my judicial philosophy is more like Felix Frankfurter's than anyone else. For example, I did not agree with Justice Kennedy's jurisprudence in taking away our society's right to legislate for or against sodomy (I could see the same result based upon an "equal protection" argument regarding uneven enforcement, but Kennedy went further and in an elitist-wealthy-corporate liberal-Republican mode, decided what was "good" for the "culture." This was different from Brown because the 13th, 14th, and 15th Amendments needed some restoration for black Americans after very poor jurisprudence and interpetation by 19th Century justices on the US Supreme Court after the Civil War. Justice Kennedy's decision on sodomy was also different from Roe because, unlike homosexuality, abortion had a far more ambiguous and tolerant history, even within the Catholic Church (read Roe, dammit!). Plus, medical technology had changed from the 1700s to make it more safe to have an early pregnancy abortion than go through pregnancy. And since when did our Founders consider a fetus a person? Ironically, Roe gives fetal rights a trump over women's rights to the extent the fetus is viable--why anti-abortion group leaders don't seek legislation to define "health of the mother" in the 3rd trimester (see: Doe v. Bolton, the companion case to Roe) tells us much about their leaders' agenda against women's autonomy in general).
As a final statement, is there anything good about Chermininsky/Fisk's article in my non-humble view? Yes. Their best point was to remind people that there is right-wing "judicial legislation" as well as left-wing--er, rarely left-wing--or "liberal" versions of "judicial legislation." But the professors' are wrong to have inadvertently reenforced the trashing of a "living document" by implying "They all do it. Sit back and enjoy it." All of us should reject judicial nihilism. Instead, we should demand from our judges that they remain in awe of the judiciary as an institution. Further, they must do their best to represent most, if not all of the people, including the people with whom they disagree.