A ‘distinction without a difference’ exists where a linguistic or conceptual difference turns out to have no substantial significance and merely masks two similar, if not identical, objects. As applied to constitutional law and interpretation, it means that judges – especially the Justices of the United States Supreme Court – employ the forms and language of law, while their reasoning, motivations and goals are political. As some often say, members of the Supreme Court are properly viewed as “politicians in judges’ robes”.
Is this assertion accurate? The evidence of the last two nominations to the Supreme Court makes clear that politicians in the United States see constitutional law as highly politicised and critical to public policy on matters of utmost importance – abortion, freedom of religion, elections, gun ownership, race and gender equality, the powers of the Executive Branch in foreign policy and national security and the rights of States against Federal power.
In February 2016, Supreme Court Justice Antonin Scalia died suddenly. The procedure for replacing him, set out in Article II, Section 2 of the US Constitution, is clear: the President is required to nominate a new Justice, but the nominee must be approved by the Senate. However, at this time, several political and partisan factors complicated the nomination and confirmation process. The Democratic President, Barack Obama, was faced with a Republican-controlled Senate. Moreover, Obama was a ‘lame-duck’ President, meaning he had served two terms and was constitutionally barred from seeking a third in November, 2016.
Secondly, as a result of Scalia’s death, the Supreme Court was balanced on a political knife-edge. The eight remaining Justices were divided between four liberals and four conservatives, though one of the latter, Justice Kennedy, sometimes joined the liberals on issues such LGBT equality and the death penalty. If Obama succeeded in appointing another Justice, he would create a decisive and solid five-Justice liberal majority that would control decisions on the most divisive issues of the day. Moreover, Justice Scalia had been perhaps the most celebrated proponent of the doctrine of Originalism in constitutional interpretation and a conservative icon. He would be replaced by a liberal and originalism and conservatism would be dealt a grievous blow. These were the political and judicial stakes that dominated the process of replacing Justice Scalia.
On the horns of a dilemma, Republican Senate Majority Leader Mitch McConnell made an unprecedented move. He announced: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore this vacancy should not be filled until we have a new President”.
Harper Neidig,
The absence of any principle in McConnell’s strategy was confirmed when he reversed his argument when Justice Kennedy announced his retirement from the Court in June 2018. As noted above, Kennedy was regarded as the swing Justice who sometimes joined the four liberals on the Court to create a majority on matters such as gay rights, abortion and the death penalty, although he was usually with the conservative Justices on other issues. If President Trump succeeded in appointing Kennedy’s replacement, then there would be a solid five-Justice conservative majority on the Court, thus finally fulfilling the aim of conservatives going back to the presidency of Ronald Reagan. Trump faced a Senate with a narrow Republican majority, but the upcoming mid-term elections of November 2018 could change that. So whereas he had delayed filling the Scalia vacancy for almost a year, McConnell now rushed through President Trump’s nomination of Brett Kavanaugh in order to get him confirmed before the mid-term elections and the possibility of a Democrat-controlled Senate. Democrats, equally politically-motivated, did all they could to delay Kavanaugh’s confirmation. This culminated in a series of accusations by women, especially Professor Christine Blasey Ford, that Kavanaugh had sexually assaulted them. In the absence of conclusive proof, Kavanaugh was eventually confirmed on an almost wholly partisan basis.
One Democrat Senator, Joe Manchin of West Virginia, voted to confirm Kavanaugh. One Republican Senator, Lisa Murkowski of Alaska did not, though she ‘paired’ her vote with an absent Republican Senator who would have voted to confirm. Thus the final vote was 50-48 to confirm.
The Kavanaugh hearings were distasteful to many observers. Yet they provided further evidence of the bitter and even toxic nature of the partisan battle to control the Supreme Court.
The Kavanaugh nomination was not the first in modern times to display bitter political partisanship. The defeat of Reagan nominee Robert Bork in 1987 was an epic battle. The narrow confirmation of George H. Bush nominee Clarence Thomas in 1991 involved unsavoury elements similar to those in the Kavanaugh controversy.
Given the sharply heightened partisanship in American politics in recent decades, one might be tempted to regard Congressional and Presidential behaviour over Supreme Court appointments as typical of politicians while telling us little about how Justices decide the cases before them. However, academic analyses of Supreme Court decision-making have increasingly concluded that constitutional law and politics are fundamentally one and the same: a distinction without a difference.
Beginning in the 1960s, the behaviouralist theory pioneered by Glendon Schubert and others argued that constitutional disputes were a means by which judges could implement their preferred policy choices. Employing statistical methods, such as unidimensional scalogram analysis, Schubert ‘predicted’ the votes of Supreme Court Justices, although ‘predict’ must be placed in inverted commas, since he in fact worked backwards. Cases were retrospectively translated into policy choices and each Justice’s votes on them were scaled for policy consistency.
Two things about Schubert’s approach are worth emphasising here. First, he explicitly states that Supreme Court Justices are political, not legal or judicial, in their intentions. As he wrote, “The Justices themselves are goal oriented and their basic goals are the same as those that motivate other political actors”.
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The second is that Schubert completely dismisses the written Opinions of Justices in cases and focuses exclusively on their votes. All the constitutional analysis, examination of precedents and institutional powers is irrelevant: “In our analysis, cases before the Supreme Court for decision are treated as questions before the Justices, who are respondents. The Justices respond not by the words they use in their opinions, but by the ways in which they vote”.
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The work of the behaviouralists was taken on and developed by those who argue for the Attitudinal Model of Supreme Court decision-making. Most closely associated with this approach are Jeffrey A. Segal and Harold J. Spaeth, who wrote:
This model holds that the Supreme Court decides disputes in the light of the facts of the case vis-à-vis the ideological attitudes and values of the justices. Simply put, (William) Rehnquist votes the way he does because he is extremely conservative; (Thurgood) Marshall voted the way he did because he was extremely liberal.
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Until the mid-twentieth century, the Legal Model was the widely accepted understanding of Supreme Court decision-making as a process of Law, not Politics. A classic statement of the Legal Model’s conception of constitutional interpretation was articulated by Justice Owen Roberts in
A 6-3 majority of the Justices agreed with the challenge. Justice Roberts anticipated the furore that would greet the Court’s decision. He emphasised that, like all constitutional decisions, it involved no act of political will on the part of the Justices and was based on impartial, legal analysis:
It is sometimes said that the Court assumes the power to overrule or control the action of the people’s representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty – to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the Court does or can do is to announce the Court’s considered judgement upon the question. The only power it has, if such it may be called, is the power of judgment, This Court neither approves nor condemns any legislative policy.
United States v. Butler, 297 U.S. 1, 62–63 (1936). William E. Leuchtenberg, 300 U.S. 379 (1937); 261 U.S. 525 (1923).
The tools that Owen Roberts and his colleagues employed in exercising “judgement” are familiar to all legal professionals. They include exploration of the language of the Constitution and the intentions of those who wrote it; previous decisions of the courts on the same or similar issues – legal precedent; and respect for canons of judicial behaviour that ensure that courts do not not usurp powers assigned to other branches of government. In contrast to the Attitudinal model, Roberts denies that the Justices have any political or policy goals in play. Moreover, they only evaluate whether the statute fits with the Constitution and not whether it is good, effective or popular. For Roberts, the Constitution is Law and the Justices are expert legal analysts.
Fast forward some seventy years and another judge named Roberts is making the same point. In 2005, John G. Roberts, now Chief Justice of the U.S. Supreme Court, was undergoing confirmation hearings in the Senate. There he compared the role and motivations of Supreme Court Justices to umpires in a baseball game:
Judges and justices are servants of the law, not the other way round. Judges are like umpires. Umpires don’t make rules, they apply them. The role of the umpire and the judge is critical. They make sure everyone plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire … I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyse the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favour to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.
In my experience most judges approach and decide most cases, including constitutional cases, quite similarly. They are professionals. And their professional training and experience leads them to examine language, history, tradition, precedent, purpose, and consequences. Given roughly similar forms of legal education and professional experience, it is not surprising that judges often agree about how these factors, taken together, point to the proper result in a particular case.
S Let me try to state in a nutshell how I view the work of judging. My approach, I believe, is neither liberal nor conservative. Rather, it is rooted in the place of the judiciary, of judges, in our democratic society. The judiciary … is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law, and without fear about the animosity of any pressure group. As Judge Oliver Wendell Holmes counselled, ‘One of the most sacred duties of a judge is not to read (her) convictions into the Constitution’. I have tried and will continue to try to follow the model Justice Holmes set in holding that duty sacred.
In fact, since the appointment of Justice Elena Kagan in 2010, the Justices of the Supreme Court divide perfectly along ideological-partisan lines. That is to say, every Justice appointed by a Democrat president has a more liberal voting record than every Justice appointed by a Republican president.
Neal Devins & Lawrence Baum,
At this point, it is necessary to examine a more sophisticated form of the Legal Model, one that takes into account interpretive theory. For the U.S. Constitution requires interpretation and application in contexts unimagined by its Framers. The Constitution was conceived in the late eighteenth century, with key amendments being added in the Nineteenth and early Twentieth centuries. The challenge facing today’s Justices can be readily illustrated by cases involving the Eighth Amendment’s ban on “cruel and unusual punishments”. What this meant at the time of its adoption in 1791 was unclear and Congressman Samuel Livermore of New Hampshire thought it was so vague as to be meaningless. He also added: “ … it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?”
Furman v. Georgia, 408 U.S. 238, 262 (1972). Trop v. Dulles, 356 U.S. 86, 101 (1958).
Other key phrases in the Constitution are also vague – the “liberty” protected by the due process clauses of the Fifth and Fourteenth Amendments or the “equal protection of the laws” guaranteed by the Fourteenth Amendment. Moreover concepts of liberty and equality can change drastically over time. Such change can be rapid, as with the acceptance of gay and lesbian rights in recent years.
There is then a tension between the traditional approach of interpreting law – ascertaining and applying the original understanding and intention of those who passed a law – and the realistic need to ensure that law is free from anachronistic and unacceptable values.
This tension came fully to the fore in the Civil Rights era of the 1950s and 1960s, as politics and law became inextricable for all to see. The rights of black Americans, especially in Southern and border States, were being grossly violated by widespread de jure racial segregation. The Supreme Court had confronted this issue in Missouri 347 U.S. 483 (1954). R
The Supreme Court unanimously ruled that separate facilities were inherently unequal, but it did not attempt to justify this on originalist grounds. Instead, it stated cursorily that the evidence of the intent of the Framers was “inconclusive” and attached more importance to the prevalence of public education for black Americans in 1954 compared to 1868. It then added some rather superficial sociological data about how segregated schools induced feelings of inferiority in black schoolchildren.
While the Court made no statement regarding its change of interpretive method, a new path had been set by Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Milliken v. Bradley, 418 U.S. 717 (1974).
The genesis of the M
Another indicator of the new relationship between constitutional law and politics is the phenomenal increase in the number of amicus curiae briefs filed by interest groups and other political actors in the wake of Joseph D. Kearney & Thomas W. Merrill,
The decisions of the Warren and Burger Courts were liberal, sometimes radical. It is therefore no surprise that they generated a backlash from conservative politicians. In the 1968 presidential election, Republican candidate Richard Nixon criticised the Court for its decisions on criminal rights and other issues.
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The reaction in legal circles to the Warren and Burger Court’s liberalism focussed less on ideology and more on interpretive methodology. While liberal activism was the consequence of the Warren Court Justices’ approach to decision-making, it was the rise of what became known as the concept of the “living constitution” that was the cause. The Warren and Burger Court Justices were slow to articulate – or perhaps confess to – the change in the way that they were approaching constitutional interpretation. Just as it was left implicit in Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. (They may have) … to endure the discomforts of pregnancy; to incur the pain, higher mortality rate and after effects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing childcare; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships.
Doe v. Bolton, 410 U.S. 179, 214–15 (1973) (Douglas, J., concurring). This is the companion case to We current Justices read the Constitution in the only way that we can: as twentieth Century Americans. We look to the history of the time of the framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.
William J. Brennan,
Critics of the Warren Court decried its activism. However, they abandoned judicial restraint per se as the main antidote and instead focussed on an interpretive method that they believed would enforce restraint: Originalism. Taking refuge in Originalism was, I believe, a strategic mistake. It offers an intuitive appeal, but is an impossibility to practice in the twenty-first century.
The intellectual leader of the Originalist movement was unquestionably Judge Robert Bork. In a seminal article in 1971, Bork argued that the Warren Court had not enforced values written into the Constitution, but rather had imposed its own value choices on the country. Not only could this not be squared with the presuppositions of a democratic society, but gave to the Court “an institutionalized role as perpetrator of limited coups d’etat”.
Robert H. Bork,
Bork argued that 381 U.S. 479 (1965).
Bork said the Court also wrongly decided 334 U.S. 1 (1948). Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964). Chief Justice Warren’s opinions in this series of cases are remarkable for their inability to muster a single respectable supporting argument. The principle of one man, one vote was not neutrally derived: it runs counter to the text of the Fourteenth Amendment, the history surrounding its adoption and ratification, and the political practice of Americans from colonial times up to the date the Court invented a new formula.
Bork,
Bork offered originalism as an antidote to judicial activism, even if that meant judicial decisions that allowed policies that were unpalatable or even reprehensible to most Americans. However intellectually convincing his arguments, he was vulnerable to charges of tolerating numerous forms of racism, sexism and inequality. He paid the price for that in 1987, when President Reagan nominated him to the Supreme Court. Almost immediately Senator Edward Kennedy launched a blistering attack on the consequences of confirming Bork:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are at the heart of our democracy. America is a better and freer nation than Robert Bork thinks… (President Reagan) should not be able to impose his reactionary view of the Constitution on the Supreme Court and the next generation of Americans.
100 C Founded in 1982, the Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order. We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and the duty of the judiciary to say what the law is, not what it should be.
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Another important force in championing Bork’s Originalist theories was President Reagan’s Attorney-General, Edwin Meese. Fittingly, in a speech before the Federalist Society on November 15, 1985, Meese launched a public campaign to promote a “Jurisprudence of Original Intention”.
Edwin Meese,
Scalia was an articulate and engaging advocate for his cause both on and off the Court. Like Robert Bork, he was prepared for his advocacy of Originalism to lead to results that would shock many contemporary Americans. For example, he argued that the Fourteenth Amendment’s Equal Protection clause should not be read to require that women be given the vote. He approves of the fact that the battle for women’s suffrage was conducted through politics and the passage of the Nineteenth Amendment. While he had no doubt that advocates of the Living Constitution would find the right of women to vote in the Equal Protection clause, that was not the language nor the intention of the clause.
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Given that Scalia would not read women’s right to vote into the Equal Protection clause, it comes as no surprise that claims for gays and lesbians, either in Due Process or Equal Protection cases, received short shrift from him. Indeed, his dissenting Opinion in Today’s opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct… One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is ‘an invitation to subject homosexual persons to discrimination in both the public and in the private spheres’. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.
Lawrence v. Texas, 539 U.S. 558, 602 (2003).
It should be clear that the relationship between politics and law lies at the heart of the Supreme Court today as never before. Conservative Justices, championing Originalism, accuse liberal Justices of imposing their political preferences on a democratic people. Liberal Justices allege that conservative Justices are imprisoning the people in the past and failing to acknowledge the importance of political and social change.
Academic champions of the Attitudinal Model assert that both conservative and liberal Justices are dissembling and that they camouflage their decisions in legal paraphernalia, while advancing their political goals. And other actors in the political system – presidents, members of Congress, interest groups, the media – treat the Court and the Justices as thoroughly politicised.
The situation is now at an impasse and the debates are locked in. It seems inevitable that there will be more unseemly nomination battles of the Gorsuch and Kavanaugh varieties. Supreme Court retirements will be thoroughly strategic, as Justices seek to create a vacancy when a president and Senate majority will replace them with a Justice of similar ideology and approach to interpretation. Whatever else they had in mind, the Framers of the Constitution did not envisage that the Supreme Court would fall so low.
Of course, there are those who refuse to give up. A recent public spat between President Trump and Chief Justice Roberts was revealing. Trump railed against a U.S. District Court judge, Jon S. Tigar, who held that Trump could not refuse to process asylum claims by those who had entered the United States illegally. Trump accused Tigar of political bias by damning him as “an Obama judge”. Chief Justice Roberts responded by saying:
We do not have Obama or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
Adam Liptak, Learned Hand was a federal judge considered twice for appointment to the Supreme Court. His contemporaries were in no doubt that he was a great judge who deserved a position on the highest court. Jerome Frank wrote: “Many who have written of Learned Hand have lamented the fact that he did not become a Supreme Court Justice, a post for which no-one else has ever been so well fitted”. Jerome N. Frank, Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936). Lochner v. New York, 198 U.S. 45, 75 (1905). Poe v. Ullman, 367 U.S. 497, 522–55 (1961).
Later Courts powered ahead with the right to privacy and declared rights to abortion and same-sex marriage. But liberal Justices returned to Harlan’s vision in a case involving physician-assisted dying. 521 U.S. 702 (1997).
The value of Souter’s approach in
If liberals Justices should hold back from taking the lead in settling controversial, emerging claims, conservatives should abandon the historic stranglehold of Originalism. It is worth reminding themselves that Originalism was first and foremost a means of preventing excessive judicial activism. There is a middle way between a rigid Originalism and ‘government by judiciary’. Justice Scalia, for example, has scoffed at the S 543 U.S. 551 (2005). Thompson v. Oklahoma, 487 U.S. 815 (1988); Stanford v. Kentucky, 492 U.S. 361 (1989).
The Missouri Supreme Court held that national opinion on juvenile execution had changed since
There is, then, a middle ground between Originalism and Living Constitutionalism that once existed and could exist again. That would involve conservative Justices accepting that the meaning of constitutional language does change over time, as society changes. It would also involve liberal Justices staying their hand on issues and allowing the democratic process to prevail except in cases where there is a clear constitutional violation.
This is turn would change the relationship between politics and constitutional law in the United States and equally important, lower the political profile of the Supreme Court. How likely is this to happen? Chief Justice Roberts has made it very clear that he would welcome such a change, but there must be considerable doubt as to whether Justices on either side are willing to do what is required. That said, the Chief now sits in the ideological centre of the Court and is well-placed to lead it away from its current political and legal turmoil. Alternatively, he may join the other four conservative Justices and reverse many of the liberal decisions of recent decades, including abortion rights and gay rights, and in contrast promote the rights of religious adherents and big business. If he chooses the latter, the relationship between politics and law can only become ever more combustible.