It has been a long time since most of us paid as much attention to the U.S. Supreme Court as we have in the past six months. But ever since Justice Samuel Alito’s decision in the Dobbs abortion case was leaked in May and then issued in June, overruling the nearly 50-year precedent of Roe v. Wade, the court has found itself in the crosshairs of controversy.
Believe me when I say that judges don’t like drawing that kind of notoriety upon themselves. They prefer to channel the Wizard of Oz, making important pronouncements from behind a curtain of anonymity that shields themselves from scrutiny as personal beings we’d want to know a lot more about because of the effect they’re having on our daily lives.
The trouble is, they can’t have it both ways. They can’t overturn precedents that most living Americans have come to rely upon as the stable bedrock of modern life and not expect those whose lives have suddenly been knocked off their foundations to ignore the individuals responsible for those cataclysmic events.
Not to mention that judges want to be thought of as wise and impartial arbiters of what the law is, not as partisan bagmen who do the bidding for the people who picked them for those roles. So when judges make decisions that cause themselves to seem more like the latter than the former, they react badly and complain of being misunderstood at best or unfairly criticized at worst. And the more they try to explain themselves, the more those whose lives have been upended suddenly start checking into their backgrounds and showing up to protest outside their homes — like what happens to politicians whose policies their constituents don’t like.
Of course, then the judges try to rationalize, claiming they’re just doing what the Founders intended when they wrote the Constitution – being true to the original intent of the people who wrote the document. The problem is that there were lots of Founders at the Constitutional Convention and they argued quite a lot about what they intended. Plus they argued in secret, making sure there were no transcripts of those sessions because they wanted everyone to speak freely. So your guess is often as good as the justices’ about why this or that wording ended up on the parchment.
And almost immediately after the necessary number of states ratified the Constitution, even that first generation of justices had to speculate about the Founders’ intent. In fact, in 1803 when Chief Justice John Marshall issued his landmark opinion in Marbury v. Madison — the one that established the Supreme Court as the final arbiter of the meaning of the Constitution — he manufactured that monumental decision out of whole cloth. There was nothing in the judicial branch article that gives even a hint that the court was to have that role, any more than the president or Congress or each individual state. He simply thought it was a good idea to make the Supreme Court supreme and he crafted a cogent argument to supercharge his own branch of the new government.
Supreme Court justices have kept up the practice ever since, disguising their personal preferences by claiming to “discover” the original intent of the Founders in order to justify their own “activism” – a word that no judge wants associated with his or her name and judicial philosophy. In recent times, it has happened in the Heller case, where Justice Antonin Scalia managed to “find” an individual right to possess firearms, whether or not it was related to service in a state militia, and despite the specific militia qualifier right there at the beginning of the Second Amendment. By the way, it took him about 60 pages to make that discovery, which might make one suspicious about the legitimacy of the effort. Even Shakespeare might have thought he’d protested a little too much.
And in Citizens United, the court’s majority was able to determine that the Founders wanted corporations and other non-human organizations to have the same free speech rights as you and me, even though there was no basis at all for that conclusion in the Constitution or in anything the Founders ever wrote or said. After all, those first 10 amendments — you know, the Bill of Rights — were exclusively about individual rights that the Founders wanted to make sure “we the people” were guaranteed by the new document. There was no indication whatsoever that they were concerned about any other breed of cat.
What we’re left with is that originalism is no more than judicial activism made to look like the gold standard of constitutional interpretation. It has been a shrewd ploy, too, by the justices who’ve signed onto that sleight of hand, because it has given them the appearance of holding all their colleagues to a rigorous standard, while providing them with cover to make the decisions they personally prefer.
Unfortunately, that’s not the way the system should work. If the justices aren’t willing to reaffirm precedents that Americans have come to depend on in living their lives, then they should resign from the court and run for office, where they can vote their personal preferences without subterfuge. Or they should come right out and say they’re changing the rules because they don’t like them. As contrary to honest judicial decision-making as the latter would be, it would at least represent a candid admission about how they’re performing their monumentally important jobs. That’s not likely to happen, but it doesn’t mean we shouldn’t keep pulling the curtain aside and calling them out on what they’re trying to get away with at our expense. Toto was on to something.
L. Phillips Runyon III is an attorney in Peterborough and was the presiding justice of the 8th Circuit Court.