In illustrating the concept of original understanding, legal scholars often reprise a famous tale involving Supreme Court Justice Oliver Wendell Holmes and Judge Learned Hand. As it goes, Holmes and Hand were having lunch one afternoon before the former was to decide a case. After eating, Holmes climbed into his carriage and departed. In a fit of excitement, Hand began chasing the carriage while shouting, “Do justice, sir, do justice.” Incredulous, Holmes stopped his ride and responded, “That is not my job. My job is to apply the law.”
The interaction described in that anecdote would have occurred during the early third of the previous century. Both before and since, attempts have been made by political activists against the integrity of the judiciary. Some of these have been justifiable crusades to override violations of both natural and constitutional rights enacted by congressional delegations or presidential administrations. Many others have been authoritarian attempts by activists and sitting judges to impose upon the public their respective characterizations of morality and justice.
The modern movement to employ the courts for the purpose of winning lost congressional battles has been of the political left, given its affection for strong centralized government militating in favor of the “common good” or “general welfare.” Most recently, as America experienced a wave of social unrest during the 60’s, liberal activists invoked the judiciary as a means by which to win the emergent culture wars. Regardless of whether or not these developments were preferable, with few exceptions they were not decisions for the judiciary to make.
Nevertheless, the temptation to use the courts rather than the legislatures for the construction of a moral and just society is seductive, and those with this ideological constitution invariably believe their ideal to be the proper framework from which deviation should be illegal. As it happens, Judge Robert Bork wrote extensively of this matter throughout his life, most notably in The Tempting of America, in which he argued that the courts were being politicized by liberal judicial activists deviating from original understanding and reading into the vagaries of the Constitution their vision for the country. Importantly, Bork warned that the temptations of judicial activism may well seduce conservatives down the road. If this were to happen, he cautioned, the liberal activists would have accomplished nothing but to have destroyed an institution entirely.
Though conservatives have mostly remained steadfast in their support of original understanding, there have been indications of slipping resolve. The most recent occurred last week, with Harvard Law School Professor Adrian Vermeule writing a piece in The Atlantic advocating for “common-good constitutionalism” as a successor to originalism and as a counterpunch against liberal judicial activism. His admirably comprehensive argument can be abridged thusly: Judges should disregard the written text and impose on society Professor Vermeule’s respective ideals of morality and justice.
In arguing for judicial activism with a conservative slant, he employs much of the same rhetoric and justifications as liberals, noting that his judicial philosophy would promote “authoritative rule for the common good” favoring “a powerful presidency ruling over a powerful bureaucracy.” He also posits that common-good constitutionalism would rule “against the subjects’ own perceptions of what is best for them — perceptions that may change over time anyway, as the law teaches, habituates and re-forms them.”
This is unapologetically tyrannical. Yet, as liberals proceed to increasingly utilize the courts for political results – to do “justice” rather than to apply the law – conservatives will be exceedingly tempted to retaliate with their own brand of judicial activism, as Bork predicted decades ago during the height of this phenomenon.
Rest assured that liberals will adopt originalism with fervor the moment a rogue, conservative Supreme Court majority begins rolling back progressive victories or outlawing certain actions in the name of the “common good.” But by the point at which the conservatives, too, have succumbed, the institution will be a shambles.
The point is simple: It does not matter whether the aim of judicial activism is to promote liberalism or conservatism; judges acting in place of legislators is an abuse of power. The safest manner for the Constitution to be interpreted is in accordance with the intent of those writing and amending it, given that no activist judge has yet delineated the constraints of his own power when not bound by the text. With this in mind, it is imperative that judicial activism be secluded from the mainstream by an unwavering dissent, uncorrupted by rampant and intensifying political temptation.
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Kevin Catapano is a weekly columnist for The Daily Campus. He can be reached via email at email@example.com.