Recently, a friend asked me why it matters whether Supreme Court nominees are “liberal” or “conservative.” She understood those words to refer only to party politics: “Aren’t legal questions confronting judges supposed to be above politics?”
I could understand her confusion. The way many media pundits have been discussing judicial ethics often conflates what is meant by liberal-conservative in the jurisprudential realm with what it means in the political realm.
My friend was quite right, of course, about the principle of separation of powers: Laws are the result of political decisions made by legislatures, and the judiciary construes and interprets the applications and limits of those laws. Thus, in order to ensure impartial decision-making, a judge’s ethical responsibility must be to place enacted law above his or her “personal political beliefs”—indeed, it’s a mantra of judges during the approval process.
But in practice, judges’ thinking is shaped by various jurisprudential movements and philosophies of interpretation, some of which have become no less contested and divided than party politics. Within the law there are theories of reading, a bit like biblical interpretation. Think of the divide within the Church of England: Nigerian bishops’ take on Anglicanism has tended toward highly literal readings of particular Biblical passages, for example, denouncing homosexuality as near-unpardonable sin. In contrast, retired Archbishop of Canterbury and Primate of All England Rowan Williams has argued that “orthodoxy should be a tool, not an end in itself.”
Just so, some judges, like orthodox religionists, read the law literally, strictly, with no allowance for connotation. Other judges read the law as Williams might, “as a tool” not an end; they read for law’s meaning in particular contexts, or based on what they deem a reasonable penumbra of attendant meanings, or expand the meaning beyond its original meaning to encompass situations not anticipated by the law’s authors or enactors at the time originally written.
For example, when constitutional protections against search and seizure were made law, there were no telephones or internet or satellite surveillance. How then, do those technologies—of bugging or data collection—fit within the meaning of privacy protections conceived long ago? Some jurists would say Congress has to make specific new laws to cover anything that is not within the original meaning of the original document as understood by the original legislators. Justice Antonin Scalia, for example, maintained that the death penalty was legal simply because at the time that the Eighth Amendment was passed, execution was considered neither cruel nor unusual. Originalists tend not to want to go beyond the meaning of the founding fathers unless Congress writes specific laws to expand that original meaning. That’s what’s at issue at the more conservative end of constitutional jurisprudence.
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At the more liberal end, theories of reading tend to be looser, bending a bit to allow what the original spirit of the law was meant to cover. It asks what the authors or enactors of particular laws would or should have done had they been confronted with this contemporary issue or that new situation. (As in: Is or is not this new-fangled telegraph machine akin to delivering messages via a high-speed pony express?) Their allowance for situational ethics—i.e., interpreting a law contingent upon the service of justice—is what is generally called liberal.
But while what I have just described is exclusively about juridical modes of interpretation and construction, these semantic leanings also largely reflect and overlap with the political world views that divide Republicans and Democrats. As a very general matter, Republicans tend to advocate orthodoxies of “law and order” and strict penological enforcements like the death penalty that leave little room for context or forgiveness or changed values.
By the same token and again as a general matter, Democrats have, at least in recent history, been more associated with more capacious or inclusive meanings that expand notions of polity and citizenship beyond the category of the “white male property holders” who were the original and only enfranchised citizens allowed by the original Constitution.
Thus, while judicial ideology and political parties are technically separate realms, there is a literal-versus-connotative, right-versus-left thread that is strong and predictive, whether in the juridical or political realm.
What’s at stake right now is that Brett Kavanaugh, the man our president has just nominated to the highest court in the land, isn’t a mid-range “conservative” in the tradition of Anthony Kennedy; rather he’s an originalist, of the Clarence Thomas and Antonin Scalia sort. And if the executive, in nominating and endorsing originalism, joins power with a newly configured Supreme Court of committed literalists—i.e., an insuperable majority of ultraorthodox—and if this new alignment really proceeds to take the Constitution back in time, it means that Congress is going to have to pass new laws to explicitly keep in place our civil rights and social reforms, particularly when it comes to race, gender, sexuality, labor, public accommodation, immigration, and equal protection. I simply do not see a Republican-dominated Congress prepared to step up to that plate.
It is not only the much-discussed right to abortion that is at issue. We are going to see many, many important measures—regarding the rights of the poor, of the working class, of women, of children, of LGBTQ, of the environment, of whoever is currently deemed nonwhite—struck down by the high court. And I fear there will be insufficient political will to bring those measures back to life through legislation.
All of that said, what’s most troubling about Donald Trump’s nomination of Judge Kavanaugh is not what I have described thus far. Rather, this particular nominee has publicly stated that he thinks a president should not be prosecuted either civilly or criminally. That doesn’t accord with any judicial or political philosophy I’m familiar with. It’s terrifying. Kavanaugh seems to endorse a more-Nixonian-than-Nixon theory of absolute executive power. Such a proposition was not really taken seriously when Nixon attempted to raise it during the time of Watergate. Yet now it seems entirely possible that this theory could become reality if Trump were to assert it, for any such a claim of immunity would undoubtedly have to go before the Supreme Court, whose tremulous balance would be weighted irretrievably toward not just conservative jurists but originalists. (Not all of this is Trump’s magic either: The court’s looming ultraconservative majority has been the decades-long work of political operatives and organizations like the Federalist Society.)
In sum, it is very sinister that no matter what the Mueller investigation may find about criminal activities before or during this presidency, our Supreme Court might have sufficient power to say it simply doesn’t matter.
