Michael Ramsey and Evan Bernick have both posted excellent and challenging ripostes to my argument that conservative judicial engagement is theoretically defenseless against liberal judicial activism. The dispute seems to distill to this question: Can an interpretive theory constrain the courts?
The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.
“The cause is in my will.”—Julius Caesar, Act II, Scene II
We ought to have known it would come to this. Still, the latest assertion of presidential authority assumes a new and ominous form: the power not merely to assert authority outside the law—which can at least masquerade under the banner of Lockean prerogative—but rather to redefine words and, with them, the institution of law itself.
An essential difference between civilization and barbarism is that civilized people conduct politics with words, a precondition of which is that words have objective meanings—they indicate this and not that—and that we are willing to articulate them.
At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”
This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.
Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.
For those whose knowledge of Justice Scalia was limited to a casual acquaintance with the exquisite certitude of his judicial writings, the tone of his son’s moving homily—suffused, to what surely would have been the late jurist’s liking, with talk of grace and sin—must have been jarring. But Scalia’s judicial philosophy was always modest, not just with respect to the judge’s role in the constitutional orbit—that much is well known, or should be—but also when it came to the inherent limits of human knowing. Scalia’s was a jurisprudence not merely of original meaning, but of original sin.
Two untenable arguments, and one constitutional solution, surround the debate roiling over Justice Antonin Scalia’s successor. One argument, from the Right, is that President Obama is duty-bound, with nearly a year left in his term, not to appoint a successor at all—a claim with no constitutional basis and whose supposed authority in custom is a phantasm. The second, from the Left, is that the Senate’s duty is reflexively to confirm whomever he selects. Yet the Senate is not the executive’s Human Resources Department, confined to checking references and résumés.
The fundamental constitutional question presented by the case of United States v. Texas is not whether the President is constitutionally required to enforce immigration laws (he is), but whether the Supreme Court is constitutionally empowered to police every constitutional dispute. If it decides to do the work of Congress and restrain the executive, it will, more than it did in Cooper v. Aaron (1958), proclaim a doctrine of judicial supremacy over constitutional questions.