As we brace ourselves for the political firestorm that is already beginning around filling the vacancy on our highest court, it would be useful to engage in a little “cultural catechesis” on the nature and purpose of the office in question. Though some will decry the “politicization” of the selection process, an honest review of contemporary opinions on the role of the Supreme Court in American life will reveal that the question of whom to appoint to the Court is so polarizing precisely because the question of what the Court is and does has become subject to drastically conflicting understandings on the part of the judges themselves.
On one end of the spectrum are those who see the court as towering above the American people, “fit to determine what the Nation’s law means, and to declare what it demands,” taking care of course “to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them.” These are the judges who have forced virtually unrestricted abortion and same-sex “marriage” on the American people, whether they want it or not. In their view, when we select a justice we are appointing a national tutor, one whose creative response to legal disputes must reach to sublime artistic heights so as to craft new solutions that will shape and inspire future generations’ political ideals.
On the other side are those, represented by the late Justice Antonin Scalia whose seat is now open, who see the Court as composed of lawyers whose task it is to apply laws made by and belonging to the American people—whether statutes composed by their elected representatives, or provisions of the U.S. Constitution, written in the name of and ratified by the people themselves. From their perspective, the chief virtue of a judge is the humbler ability to grasp and apply the plain legal meaning of texts insofar as these can be gleaned from the appropriate contexts, otherwise leaving the “value judgments” implicated in legal disputes up to those who make them best: once again, the American people.
To the extent that this summary captures the options available to us today, there is no doubt that a justice from the latter camp is far preferable to one from the first. Given the brilliance of Justice Scalia’s legal thinking and writing, the courageous stances he took against so many of the Court’s abuses of power, and the tremendous pressure that will be brought to bear on the Senate to approve a nominee who will shift the Court more decisively in the direction of judicial despotism, it is more than understandable that many at this moment are primarily focused on maintaining the status quo by insisting on the appointment of another “textualist” to the Court.
Though it may be painful, however, it is of supreme importance that we take this opportunity to assess the strengths and weaknesses of textualism as an approach to reigning in an errant Court. Justice Scalia, who referred to his own judicial theory as a “lesser evil,” would be the last to take offense at a fresh and probing examination of this question. And if we take this plunge, we will find that textualism, despite its real merits, contains elements that both conflict with the original understanding of our system of government, and undermine the larger goal of restoring the cultural foundations necessary to sustain a sound system of republican self-government.
The merits and flaws of Scalia’s approach are best revealed by a look at Planned Parenthood v. Casey, the 1992 decision in which a divided Court upheld Roe v. Wade’s judicial blockage of laws restricting abortion. The Casey court based its 5-4 ruling on two main grounds: first, a definition of Constitutional “liberty” as the individual’s right to define the meaning of the universe for herself; and second, the need to shield the Court’s authority from the appearance of weakness that might result from its changing course under political pressure. In one of the stinging rebukes for which he is justly famous, Scalia pointed out that the Court’s definition of liberty, while feigning judicial neutrality, is in fact a way of taking sides in the “culture wars” dividing the nation; and that the Court’s stubbornness in forcing its own views on the public in such matters is the root cause of the political pressures it rightly laments.
So far so good. Scalia was entirely correct to argue that the Court’s views on abortion have no grounding in the texts or traditions of American law, and that its decisions trampled on the right of self-governance placed by our Constitution in the hands of the people themselves. The fault in Scalia’s stance can be seen in his statement that “The States”—that is, the American people—“may, if they wish, permit abortion-on-demand,” though “the Constitution does not require them to do so.” By portraying abortion as a “value judgment” about which “reasonable people can disagree,” to be determined by nothing more or less than the people’s will, Scalia misrepresented the form of government bequeathed us by our Founders, and neglected an opportunity to contribute toward a revival of that original understanding in our times.
There is no doubt that, in the American system of government, “the people are the only legitimate fountain of power,” as James Madison put it. Not only did the people “ordain and establish” the government under which we live, according to the Constitution itself, but we did so with the understanding (stated in the Declaration of Independence) that it is our solemn right “to alter or abolish” “any Form of Government” whatsoever, “and to institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to [us] shall seem most likely to effect [our] Safety and Happiness.”
As the Declaration clearly specifies, however, the people have a right to alter or abolish governments only when they are “destructive of these ends,” “these ends” referring to the securing of “certain unalienable rights” whose existence and goodness are “self-evident” on the basis of “the Laws of Nature and of Nature’s God.” Since natural law is another term for man’s participation in eternal Providence by the light of human reason, this means that the people’s legitimate powers, however fundamental, are rooted in a higher law—the rule of right reason—to which the people themselves remain subject along with their government. In Madison’s words, “it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.”
This Socratic formula is at the very foundation of the people’s power over government, and of the specific form of government established by the American people. Having made a government and organized its powers, the American people placed all actors within that government—including themselves—under a system of checks and balances designed to suppress what is harmful and elicit what is beneficial in their views and designs. While this system eschews the naïve expectation that perfect virtue will always be found in the people or their rulers, it by no means dispenses with the need for wisdom and justice in either camp. Rather, it fosters conditions in which a lack of these qualities in one party or the other can be remedied by the action of other parties in the system.
The proper workings of this system are best exhibited by Abraham Lincoln. Regarding judicial power, Lincoln rightly reminded us that the people cannot surrender constitutional issues to the Supreme Court “irrevocably,” when there is a distinct possibility that one or more of its decisions is “erroneous,” without ceasing to be “their own rulers.” But Lincoln’s understanding of his own authority as president is even more instructive in thinking about the proper role of Supreme Court justices. Despite his personal and political opposition to the evils of slavery, Lincoln understood that as president he was legally bound by certain compromises with the institution written into the Constitution: in a time of peace, he could not unilaterally abolish slavery without abusing his authority. On the other hand, Lincoln made it abundantly clear that the Constitution is rooted in the natural law, according to which (to quote Thomas Jefferson) slavery constitutes “cruel war against human nature itself,” that the Constitution therefore has to be understood as fundamentally anti-slavery despite its limited accommodations with the fact of slavery, and that he and all other citizens not only could but must do all within the sphere of their legal authority to oppose slavery and put it on a course to extinction.
A case can be made that the Fourteenth Amendment to our Constitution requires states to protect all innocent human life, including that of the unborn. Laying that aside, even a Supreme Court justice who believes that the Constitution as written is insufficiently clear on this point for the Court to impose a rule need not be reduced to restating the text and leaving the resolution of the matter to the whims of the people. Following Lincoln, such a justice could and indeed must do all in his power to articulate the principles of natural law according to which abortion is an “abominable crime” (to quote Vatican II), and to remind the people that their right to govern themselves is rooted in and bounded by the laws of nature and of nature’s God. There is nothing arrogant about a justice striving to fulfill the demands of this higher law within the sphere of his authority, or insulting about his calling upon the people to strive to fulfill them in theirs. Our system of republican self-government demands no less of its participants, and we should demand no less from any appointee to our highest court.