Justice Anthony Kennedy has announced his retirement, and once again we face the prospect of confirmation hearings featuring whether the nominee will “respect precedent,” believes in adhering to “the text” of the Constitution and the framers’ “original intent,” versus engaging in “judicial activism.”
These debates are mostly meaningless posturing. They are a rhetorical strategy used to justify a particular result. They do not describe an actual (or even possible) legal method. Pundits and politicians trot out these shibboleths because they don’t believe the average citizen can deal with complexity and ambiguity.
“Plain meaning,” “original intent” and fidelity to the text sound like such obviously correct principles that the suggestion that someone else does not believe in them marks them out as deviant and wrong. But this is just sloganeering and it is intended to manipulate you to favor those candidates and to reject those who do not immediately genuflect in that direction.
In reality, all judges are “originalists,” all judges are “textualists,” and respect for precedent is always an issue for all judges, even if not the decisive one, in making a decision.
All judges are, on occasion, textualists, originalists and activists; sometimes all three within the same opinion!
Every judge, whether conservative or liberal, is going to start with the words of the Constitution (or any other law) when they try to apply it. That is the way law works. The trouble is that the Constitution is full of mushy, subjective words like “due process,” “necessary and proper,” “cruel and unusual,” leading inevitably to the problem of how to define these words. What process is “due”? What is “necessary and proper”? What does it mean for a punishment to be “unusual”? You see the problem.
There is a lot in the Constitution that needs interpretation. When trying to figure out what it means most judges will look at the intent of the drafters. Sometimes, a really committed originalist might consult contemporaneous dictionaries or historical materials to try to figure out what the drafters were thinking, but which dictionary is the right one? Is there any proof that the drafters saw it? The dilemmas like this proliferate without end.
Another, more typically legal resolution of the “what were the framers thinking?” question, is to look at past decisions of the court (precedent) and proceed accordingly. This is referred to as respecting stare decisis which is Latin for “standing on (or by) the decision.” That we have always done something a particular way is one of the main sources of legitimacy in law, for some good, and some not-so good reasons. The good reasons are that following precedent makes the law more predictable, it means (in theory) that the public can have some idea in advance of acting whether some action they are contemplating is legal. And it suggests (again, in theory) that like cases will be decided alike.
However, (and you knew this was coming, right?) precedent only takes you so far when (a) the court has to confront a question it has never dealt with before; or (b) when it has a question that was answered one way in the past but which decision now seems, by general social agreement, wrong. Undoubtedly, the most comical applications of the originalist strategy involve trying to decide what the framers would have thought about a technological problem, like how intercepting cell phone calls they could not have considered because the technology did not exist.
More difficult problems are ones that do not involve changes in technology, but changes in the political or moral beliefs. Take, for example, the question presented in Loving v. Virginia of whether Virginia’s statute prohibiting interracial marriage, was constitutional. The Constitution is silent on this question. So there is no text or plain language. As to “original intent,” slavery was legal then, so it is likely the framers would not have thought such statutes were a problem. However, the 13th Amendment abolished slavery and the 14th Amendment, guaranteed that all persons “born or naturalized in the United States” were entitled to all the “privileges” of citizens of the United States. Surely, the right to marry was such a privilege. On the other hand, Plessy v. Ferguson, decided more than 70 years before the Lovings’ case, upheld the constitutionality of segregation and announced the principle of “separate but equal.” Some would argue Plessy dictated that the Virginia law be upheld. But what about Brown v. Board of Education? It rejected “separate but equal.” Yet, the Brown decision only applied to schools. It was silent on the marriage question.
None of these strategies — textualism, original intent or precedent — would clearly answer the question for the justices in a way that everyone would agree with. You could have crafted a respectable legal answer either way. (The moral answer is a different matter.)
The Lovings won. The Supreme Court decided that freedom to marry was indeed protected by the Constitution under the 14th Amendment — even though the words “freedom to marry” were not to be found there and even though the framers intent and the prior precedent was ambiguous. I trust most people believe this is generally a good thing.
Any time an important question is brought before the court, one on which people are divided and feel passionately about, there is a political element to the decision since inevitably there is little guidance to be had from the plain words, attempting a mind-meld with the framers or looking to precedent. Because these questions are so often deeply political, it is important that there be checks and balances against a court that gets too far ahead or too far behind the society it serves.
It appears very likely that President Trump will nominate someone who will put the court very much out of sync with the majority of the electorate and with the existing social norms for generations to come. That ought to be a disturbing prospect for everyone, especially those who care about precedent.
Tamara R. Piety is a professor of law at the University of Tulsa College of Law.