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.