The Law & Liberty Blog, Broken Clocks, and the Dangers of Philosopher Judges

 By Eric Segall

I subscribe to a website called the "Law & Liberty Blog" to keep abreast of what folks I normally disagree with are saying and what they think is important and timely. Pretty much every morning I receive an e-mail alert with the day's essays. Some of the contributors have an uncanny ability to dress up their personal political values and preferences in neutral sounding legalese. Occasionally, I respond to those kinds of posts on this page

That said, like a broken clock, every now and then an essay appears on the site that I find agreeable, persuasive, and important. So it was with a piece by Greg Weiner last Thursday titled "Why Would We Expect Philosopher Judges?" Weiner's essay is a response to a truly horrifying social media famous article in "The American Mind" by four folks calling for "A Better Originalism." That article was a conservative manifesto asking judges to pay much less attention to text, history, and precedent, and focus more on turning the United States into a theocratic, gendered society where judges impose a conservative moral vision on the country because...well because those are the political values of the four authors of that disturbing article. 

All you really need to know about that article can be summed up by the authors' tortured description of the American left as a group who wants "to establish, and to enforce ruthlessly, a scheme of 'identity politics' in all branches of American life. The American people are to be broken into a series of tribes, set against each other by color, by race, by 'sexual orientation.'” Why sexual orientation is in quotes is mystifying, as is the call for a "Better Originalism" whereby conservative judges decide cases conservatively regardless of prior law or the Constitution's original meaning.

But back to Weiner. He notes two problems with the call for a "Better Originalism." He questions the premise that all important constitutional issues are also judicial issues, and he wonders whether judges who have the power to impose their moral convictions on the rest of us will act like responsible judges. Both points are important and transcend the issues raised by the "Better Originalism" manifesto.

A representative democracy governed by a written constitution could function quite well with judges who only strike down laws that, in the words of Alexander Hamilton in Federalist No. 78, are at an "irreconcilable variance" with constitutional text, structure, or history. In fact, as I've written before, to the extent we care about how the framers viewed judicial review, they expected judges to use that power modestly, rarely, and only in those cases where the constitutional error is clear. After all, as Weiner observes, judges were once law students and lawyers, and they were trained in advocacy and textual analysis, not moral reasoning. When judges "interpret" vague texts like "equal protection" and "free exercise" with contested histories, they will, absent strong deference to more accountable political officials, inevitably use morality-based reasoning to reach what are usually controversial value judgments. Weiner sensibly asks the question why we would delegate such a task to lawyers and judges. As the early originalists like Robert Bork argued, where text and history are unclear, a judge's job should be to step aside and let the political process, assuming it is functioning properly, work.

Weiner's second point fits nicely with his first one. Judges who feel free to investigate the moral universe and veto laws based on their personal views of the good, the bad, and the ugly will almost certainly abuse their power. My book "Supreme Myths" catalogues how serious a problem this abuse of power has been throughout American history. To Weiner's credit, he doesn't want future judges embracing that moral perspective even if, as the cards now lie, they would likely see the world the way he does. 

Weiner also correctly observes that judges cannot and will not save us when elected leaders make wholly immoral decisions. The Supreme Court was "worse than useless when it came to slavery," and the same can be said of racial issues more broadly for most of our history as well as, in the minds of many, abortion, affirmative action, the balance between gun rights and public safety, and on and on and on.

Weiner points out that the "'Better Originalism" folks criticized Justice Gorsuch for the Bostock decision as an example of why we need judges to look at the moral side of things (and maybe why they think "sexual orientation" should be in quotes). I think it is likely Gorsuch did look at the moral side of things but dogmatically refused to say so, hiding behind the veneer of an allegedly rigid textualism. If I'm right, the one thing worse than judges imposing their own moral values on the rest of us is judges doing that but not admitting that is what they are doing. Gorsuch's votes in two big religion cases Trinity Lutheran and Montana Dep't of Revenue, for example, had nothing to do with text and everything to do with Gorsuch's views on religion. I suspect his views on the perniciousness of sexual orientation discrimination in fact played a large role in his "textual" analysis of Title VII.  The "Better Originalism" folks just didn't like those views.

Weiner argues that the problem isn't necessarily the existence of bad judges but that bad judges exist because we expect them to do way too much. I agree. Limiting judges to the study of text and history, and leaving moral judgments to the people who make the law, would be a much better system of justice. Of course, there may be times when legislators pass laws obviously in tension with the Constitution, and when they do so, those laws should not be given effect. But that is quite obviously not the way judges have operated in our country since at least the Dred Scott decision in 1857. We do not live in a country where judges only strike down laws when the error is clear.

About 18 months ago, I wrote on this blog that a better future for the Court and our country would be one where the Justices return the issues of abortion, affirmative action, and gun control to the states. The Court has now decided that next year it will hear major abortion and gun cases, and the Harvard affirmative action litigation is right around the corner. I suspect that, as a matter of policy, Weiner and I might disagree on these three issues even if we might find common ground in the idea that judges should stay out of these divisive and society-defining questions. I'd like to think that Weiner would agree with what I said in that post:

There is simply nothing in the text or history of the Constitution that privileges a woman’s freedom to terminate her pregnancy over state concerns for the fetus. Similarly, the Constitution says nothing, outside the context of a 'well-regulated militia,' about the proper balance between gun rights and gun safety. And, there is nothing in the Constitution’s text prohibiting the use by public universities of racial preferences to assist traditionally disadvantaged minorities, and if anything, the history of the Fourteenth Amendment suggests such preferences are fully constitutional. In all three areas, the Justices have relied on their own values, politics, and experiences, not text or history, to reach their decisions....

The Supreme Court has played much too large a role in our system of government for far too long....A good start to restoring robust democracy would be to for the Court to extricate itself from the politics of abortion, gun control, and affirmative action.

A "better originalism" would remove judges from making morally questionable decisions overturning the people's laws. In any functioning democracy, people of good faith will disagree on fundamental moral questions and that is why we vote. It is emphatically not why we have judicial review, as Weiner's excellent essay persuasively demonstrates.