Energion Roundtable Week 8 Responses
This week’s Energion Roundtable question concerned the courts and as usual there were a range of views in the responses from Arthur Sido, Bob Cornwall,, Allan R. Bevere, Joel Watts and myself.
As usual Sido and I pretty much agreed, and our biggest disagreement is that I spoke of original intent whereas he referred to “strict constitutionalist.” While legal scholars would find some difference between the terms, for the purposes here they are synonymous.
Cornwall did not really speak to the various philosophies and seem to focus more on preferring judges who would agree with his political views and opposing those who do not, which is a fairly common view and one of the problems with the politicization of the courts.
One of the examples of a bad decision cited by Cornwall was Citizen’s United, which is attacked on the left as much as Roe v. Wade is attacked on the Right; Sido, for example called Roe “a legal monstrosity.” But there is a huge difference in these rulings that goes to the heart of the way Judges reach their decisions.
At issue in Citizens United was whether or not a group, the Citizens United of the title, could distribute a movie about Hilary Clinton. The questioning during oral arguments showed that the statue covered far more than movies, and could even include books. Thus the problem was summed up by Justice Scalia as
“you are a lawyer advising somebody who is about to come out with a book and you say don’t worry, the FEC has never tried to send somebody to prison for this. This statute covers it, but don’t worry, the FEC has never done it. Is that going to comfort your client? I don’t think so.”
Thus at the heart of Citizen’s United was the first amendment and whether or not government could ban a movie, or even a book about a political candidate, something I would argue is pretty clearly covered in the First Amendment. One can argue about whether or not the First Amendments applies to people who organize themselves into a corporation, or if by organizing they lose their first amendment rights, but that the first amendment covers speech is not at issue.
Looking at Roe v. Wade the issue is far different. It is just a fact that the Constitution does not mention abortion. If the framers had wanted to include it they certainly could have. It is not as if abortion is some new technology like computers they could not have known about. But they did not include it. So Roe asks us to believe that either this right was in the constitution but had gone completely unnoticed for nearly 200 years, only to be discovered in 1973, or that the Court acts basically as a running constitutional convention able to change the constitution as it sees fit.
Bevere attacked the idea of strict Constructionism writing,
“Judges have judicial philosophies. It is impossible to come to any text in an objective and neutral way. Hence, I reject the idea that one can have what is referred to as a strict constructionist reading of the text.”
This strikes me as the perfect is the enemy of the good. He is probably correct that this cannot be determined in any perfect sense, but that is far different from rejecting the pursuit altogether.
Again if Judges are not going to make these decisions based on what it meant when passed as best as they can determine it, what are they going to make the decision on and on what basis can they change it? Bevere is not real clear on this point.
Finally, and surprisingly I agree with much of what Watts wrote, except that,
“Whether we like it or not, both sides have destroyed the sanctity of the separation of powers and the non-partisan court.”
While there is some truth to this, the two sides are hardly equal or the same. As I pointed out in my answer, those arguing for judges who will overturn Roe because it is not grounded in the Constitution are frequently confused with those arguing for overturning Roe, because they oppose abortion.
Thus I would argue that decisions like Roe and those who support them are the cause of the politicization. Rulings like Roe, grounded in the current majority of the Court rather than the text of the Constitution, inevitably make judges into policy makers. This puts them squarely into the political arena. They cannot use the excuse ‘We are just following the law,’ if they are the ones making the law.
Ultimately the core problem can be seen in Watts’ statement,
“The only litmus test needed for the Supreme Court is whether or not the would-be justice believes that he or she can effective rule in a constitutional manner, regardless of the issue.”
This sounds nice, but it begs the question of just what is “a constitutional manner?” Is the judge bound by the Constitution as written, passed and amended? Or is the Judge free to change the meaning of the Constitution in the process? That is the key question.
