The late Supreme Court Justice Antonin Scalia was a brilliant and charismatic exponent of the so-called “originalist school.” He believed the Constitution should be interpreted and applied within the context of what the framers intended when it was written. He proclaimed the document was “dead” and thereby frozen within the minds of its authors, to be interpreted as it would have been in America as it was more than 200 years ago.
Efforts to fit it within today’s context, he would argue, was a distortion or worse – a move to politicize it and make it an instrument of those who wished to radically change public policy. He believed that should only be done by legislation or, if necessary, by amending the Constitution. By adopting this narrow and restrictive interpretation, he opposed many progressive reforms.
To suggest that the Supreme Court is not a political institution and that members are not influenced by their experience and personal beliefs is not only wrong, it’s impossible. Conservative justices normally tend to view the Constitution as Scalia did: more as an obstacle. Liberal members see it as a living document that should be interpreted within the context of an evolving reality that the framers could never have imagined. For both, ideology is the lens through which they view the document.
When the circumstances and politics of an issue so require, both sides have been willing to rationalize what amounts to a back-flip. The justices, after all, are human beings. As much as they may try, they cannot leave their attitudes, strengths and weaknesses at home. Despite these influences, I believe, for the most part, they sincerely try to do the right thing within the framework of their own beliefs. It was not simply a coincidence that Scalia was a very conservative Catholic. More artfully than many others, he projected his personal opinions into a restrictive interpretation of the law.
As the court of last resort – and given the life terms of its members – the Supreme Court is arguably the most powerful political institution the country. One should not be confused by its quasi-religious trappings into thinking it is some mystical oracle. The justices are human and efforts to apply the Constitution obviously involve a healthy input of their own beliefs. How can they be expected to understand the “intentions” of framers from two centuries ago who supported slavery and opposed women suffrage?
The shortcomings of an “originalist” approach is evident today where radical Muslims adhere to a rigid 7th century interpretation of the Koran to justify unspeakable acts. It is an interpretation rejected by most Muslims, who have a more liberal understanding of the tenets of their religion. Roman Catholics, historically, have also used misguided Christian teachings to commit barbarous acts.
How can an “originalist” interpretation operate within evolution? The grandeur of the Constitution is its relevance in an ever-changing world, the adaptability of its principles to circumstance that the authors never could have comprehended. We see the same struggle today within the church, as conservative and liberal Catholics struggle over the interpretation of church doctrine in a fast-changing world.
To reduce the partisanship now so evident in the battle to replace Scalia and to protect the court from being infected by dysfunction and obstructionism, both parties should seek to appoint moderate candidates who will be flexible enough to balance conflicting perspectives. The willingness to appoint and confirm middle-of-the-road candidates of integrity with the wisdom to see and understand both sides of an issue and the capacity to foresee the consequences of a decision is essential.
Based on a personal reaction to what is right or wrong about a policy at issue in a case, a judge can always come up with what appears to be a sensible legal rationale. The merits of a policy drive the legal justification. In other words, a judge’s subjective reaction to a case determines the interpretive philosophy, be it originalist or adaptive. The law (rather than the policy disagreement) is then cited as the paramount reason for the decision. Legal gymnastics mask the policy dispute.
Scalia proved adept at adaptive interpretation to suit a purpose. In the Citizens United case, he concluded that unlimited campaign contributions by individuals and corporations are free speech and thus protected by the First Amendment. It is an example of a more realistic interpretive practice, better expressed as: “It is less likely I will follow the law to where it takes me than I’ll take the law where I want to go.”
The use of “litmus tests” by both parties in confirmation hearings to identify conservative or liberal candidates is understandable but unfortunate. It forces candidates to dissemble in order to avoid offending one side or the other. They are often required to state the impossible – that their personal views will not influence them in their role as judges – when all we want is honest, fair-minded people who are capable of changing their minds when circumstances warrant.
James W. Dolan is retired Dorchester District Court judge who now practices law.