By Edward Lazarus
Sunday, July 10, 2005
In the debate over the future of the Supreme Court, Democrats and liberals are off to an ill-advised start: falling all over themselves to embrace Justice Sandra Day O'Connor as the model for the kind of jurist Bush should select. This impulse is understandable as a political matter. O'Connor joined the court's more liberal wing on several key issues, including, most significantly, in upholding the core of Roe v. Wade, which guaranteed a woman's constitutional right to choose abortion.
But O'Connor reached these positions -- as well as many conservative outcomes -- using an approach to constitutional interpretation that should be as troubling to liberals as it is to her more conservative colleague, Antonin Scalia. Indeed, liberals link themselves to O'Connor's judicial legacy at the risk of losing the war of ideas before the next battle is even joined.
The rap against liberals is that they do not care about the text or history of the Constitution and do not have any principled method for interpreting the document. Instead, they simply enshrine their moral choices in the Constitution under the guise of interpretation. In common parlance, this is called legislating from the bench.
There is some truth to this charge. In the 1970s, for example, liberal justices declared the death penalty per se unconstitutional even though the Constitution's due process clause (which protects against the deprivation of "life" absent due process of law) explicitly contemplates the idea of capital punishment. Roe v. Wade is another example. The generalized right to privacy on which the 1973 ruling is based has no obvious textual basis in the Constitution; the decision's grounding in history and precedent is scant; and the opinion itself spends only a few sentences trying to explain its constitutional justification.
Liberals have tried to paper over these flaws with nice-sounding rhetoric about the Constitution's grand promises of individual liberty and the "evolving standards" that infuse them with meaning. A case can be made for this -- up to a point. But when unelected, life-tenured judges use their power of judicial review to overturn the enactments of elected representatives, there has to be some greater justification than a judge's own sense of modern morality or wise policy.
This is where the difficulties with O'Connor's jurisprudence arise, as does the danger for liberals who now champion its virtues. In one field of law after another, she has imposed on the court highly idiosyncratic and personalized tests for what the Constitution requires. Take the issue of abortion. In O'Connor's controlling view, states are free to regulate abortion as long as they do not impose an "undue burden" on a woman's right to choose. What is an "undue burden?" On this closely divided court, it boiled down to O'Connor's personal judgment.
O'Connor's approach to the constitutionally mandated separation of church and state is much the same. Thanks to her, under current doctrine, government can 5ccommodate religious observance, including permitting religious displays on public property, so long as government does not appear to be "endorsing" religion. What constitutes an "endorsement" as opposed to some lesser form of recognition or affinity? O'Connor's personal judgment on a case-by-case basis, that's what.
Simply put, O'Connor has been the master of self-referential, "I know it when I see it" standards for interpreting the Constitution. In the current rush of praise, O'Connor-philes new and old extol what they see as the judicial restraint in her "incremental," or "minimalist," style of judging. These can be judicial virtues. But they don't properly describe O'Connor's approach. While her malleable tests may often minimize the reach of particular decisions, they maximize the power of an individual justice at the center of the court to define the Constitution according to subjective judgments about right and wrong instead of more objective and broadly applicable principles.
Liberal lobbying for an O'Connor-esque nominee carries a double shot of danger. First, it will serve to confirm and reinforce the conservative critique of liberals that, when it comes to the Constitution, they have no principles, only preferences that they want to impose on the nation. And, second, most of the time -- and usually when it really counts -- a conservative in the O'Connor mold will vote conservative, often extremely so. Remember Bush v. Gore ? That was a classic of unprincipled, case-specific, result-driven judging -- and the O'Connors of the world would be on board every time.
The liberals' search for the next O'Connor is already twisting them into intellectual pretzels. Who could have imagined, as Democrats appropriately skewered then Attorney General-designate Alberto Gonzales for his authorship of the notorious torture memos, that these same senators would be virtually praying for Bush to nominate him to the Supreme Court?
There is a root cause for this incoherence. It is the liberal obsession with Roe. Many on the left cherish O'Connor because she helped save Roe. They will confirm Gonzales because they hope he will do the same. And they will try to torpedo a more right-wing nominee -- as they did Robert Bork -- as an enemy of the right to privacy on which Roe is based.
Whatever the political benefits of this strategy, it sells the Democrats' intellectual souls. Roe is easily defended as good policy or, after 32 years, settled law. But as a matter of constitutional interpretation, even most liberal jurisprudes -- if you administer truth serum -- will tell you it is basically indefensible. Yet Democrats have made it a litmus test.
There is a better way. To begin with, the conservative approach to the Constitution is extremely vulnerable to attack. President Bush is on record many times saying that he supports "strict constructionist" judges. But even Bush's judicial allies, such as Scalia, concede that strict constructionism is a "degraded" approach that no one should follow. And for good reason. Strict constructionism traces its intellectual roots straight to the pro-slavery politicians of the 1820s and provided the jurisprudential underpinnings for Confederate secession as well as more modern opposition to Brown v. Board of Education and the dismantling of Jim Crow laws.
The jurisprudence of "original intent" -- the preferred approach of Scalia and Clarence Thomas (Bush's two favorite justices) is also deeply flawed. The point of "originalism," its adherents say, is to prevent judges from imposing their views on the Constitution; instead, justices decide cases according to what the Framers would have thought about the constitutional question at issue. This sounds good, but it is largely a sham. Despite the professed objectivity of their enterprise, originalists engage in all kinds of subjective, value-laden judgments when interpreting the Constitution.
For example, originalists still have to choose among the often conflicting views of the Constitution's various Framers. And once originalists select which Framers to follow, they have to apply this set of views to many legal questions that were beyond imagining 220 years ago when the document was written. Originalism also does not provide much guidance about how to interpret the Constitution's many indeterminate terms, such as "equal protection" and "due process," which are intrinsically contextual and were given no universal meaning by the Framers. Worse yet, originalists have to deal with the paradox that the Framers themselves apparently did not intend for future generations to interpret the Constitution according to the Framers' original intent.
Behind a false front of objectivity, moreover, the current Supreme Court's conservatives have been engaged in a profoundly anti-democratic enterprise. They have struck down more federal laws than any court in history. They have immunized states and state officials from being sued for violating certain laws. They have given a free pass to the political gerrymandering of electoral districts that has fostered the extreme divisions and gridlock that are now the hallmark of Congress. They have watered down protections against government intrusions in our private lives even as technology has multiplied the government's power to monitor our every move and chart our every commercial interaction.
Liberals do have a principled constitutional vision to set against this conservative record. This vision embraces democratic principles of governance, a strong federal role in solving national problems, and a broad but not unfettered view of civil rights and civil liberties. This vision is grounded not in personal preference, but in the ideas actually expressed in the text of the Constitution as read in light of its history, subsequent experience and precedent. A Civil War was fought to elevate federal power over the rights of states and to secure equality, procedural fairness, and the privileges and immunities of citizenship to every person in this country. The Constitution explicitly grants these guarantees and it is the warrant of judges to apply them against the perceived needs of our time.
Putting forth this vision in a convincing manner, however, will require liberals to liberate themselves from the intellectual shackles of Roe. If conservatives have proven anything over the last generation, it is that a clarity and integrity of ideology ultimately translates into political power. The upcoming hearings present an ideal chance for Democrats to start to heed that lesson -- and O'Connorism should be no part of their plan.
Edward Lazarus, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court" (Penguin). He is a former assistant U.S. attorney and clerked for Associate Justice Harry A. Blackmun at the Supreme Court from 1988 to 1989.