The Founding Fathers envisioned the Supreme Court of the United States as an apolitical branch of government, co-equal to the others but devoid of any partisanship or politicking. Alexander Hamilton wrote that judges in the new American system would have “neither force nor will, but merely judgment.” The question of confirming a justice to the Court, then, should hinge on whether that person is qualified for the position and has demonstrated skill in interpreting and applying statutes and precedents. Yet in the last several decades the Court nomination process has turned bitter and rancorous. Gone are the days when Antonin Scalia could be confirmed 98-0.
Why has the judiciary become such a lightning rod? How have we reached a point where 20 percent of voters named “the most important factor in their vote” as not the economy or foreign policy, but Supreme Court nominations? The answer lies in the vision that many Americans have of the Court’s function. That vision has deviated quite a bit from that of Hamilton and Madison, and is one symptom of a deeper moral disease in American life today.
As seen above, Hamilton stated that the role of the judiciary is judgement, the task of determining whether a given situation falls within a statute or whether a given law is in accord with the framework and principles of the Constitution. What is the law that applies to this circumstance, and has the law been broken? This is the essential question for a judge. Yet a different judicial theory has been gaining traction, an application of identity politics. In this view, the determining factor in a case is not the text of the law, but the social status of the parties to the case. In short: employees should be favored over employers; individuals should have benefit over corporations; little guys should win, big guys should lose, regardless of the law in question.
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This attitude was on display in the opposition voiced against Justice Gorsuch’s nomination. Sen. Diane Feinstein (D-CA) “pointed to his opinion in Transam Trucking v. Administrative Review Board in which Gorsuch sided with an employer who fired a trucker who disobeyed an order to stay with a disabled vehicle in subzero weather conditions.” Sen. Feinstein does not discuss the law in question or how it would apply to the case; for her, the only relevant facts are that an employer won a case over an employee. Likewise, Sen. Claire McCaskill (D-MO) announced that she would oppose Gorsuch’s nomination “because his opinions favor corporations over workers and he’s shown ‘a stunning lack of humanity’ in some of those decisions.” Again, Gorsuch’s alleged defect is not in misapplying the law or writing poorly articulated decisions, but rather the simple fact that his decisions sometimes came down on the side of businesses rather than individuals—text and context apparently being irrelevant to the matter.
Justice Gorsuch argued that in these cases the law was on the side of the employers and businesses, and thus it was only just that he should decide in their favor. If the senators above think these are poor or unjust laws, then their duty as legislators is to introduce new legislation that improves upon them. But the solution to an unjust law cannot be the effective usurpation of legislative power by the judiciary. Judges cannot simply re-write laws they do not like via “re-interpretation,” nor can they order the executive not to enforce properly passed laws without sufficient reason. For the judiciary to arrogate to itself the functions of legislature and executive is for the judiciary to become essentially tyrannical, as Madison argued.
The underlying principle is familiar: the result is more important than the process; outcomes über alles; the ends justify the means. To some, the principle of the rule of law is a convenient fiction, to be dismissed when the law demands an outcome they do not desire. Whether the law was duly passed by elected representatives, properly enforced, and correctly interpreted is irrelevant. They don’t like it. And rather than convincing their fellow citizens, especially those citizens in Congress, to change the law, they expect the judiciary to cut down the law unilaterally, with no consultation of the electorate. This is legislation without representation.
They may have a good intention in mind, but in a sense, that is precisely the problem, for the good intention or the desired positive consequence justifies in their minds the methods used to achieve it. This is consequentialism. This is Will Roper saying he’d cut down every law in England to get at the devil himself.
There are at least two main problems with consequentialism. The first is that whatever the goal, and whether it is realized or not, one is still doing evil to achieve it. In the scenario of torturing a terrorist to find the location of a bomb, the torture apologist usually argues anything is acceptable to save innocent lives. Anything, you say? Suppose we torture the terrorist’s 5-year old daughter instead? Isn’t this still morally acceptable, if all that matters is the good result? Or should we not acknowledge the same unacceptable cruel indignity is being visited upon both? This is why the road to hell is paved with good intentions.
The second problem, related to this, is that there is no guarantee that the sought-after benefit will be achieved anyway. You might torture the terrorist, or his daughter, in an attempt to locate the bomb; but if they refuse, or don’t know, or lie to you, and you don’t find the bomb, the only results are two tortured people and an exploded bomb with its casualties. Outcomes can rarely be assured. All you can be certain of is the action you’re doing directly.
Consequentialism is the de facto moral theory of our society. We tell ourselves we’re being “practical,” that “we live in the real world,” that we’re “just doing what works.” From this position, we allow ourselves to justify all manner of evils, all in the name of pursuing some ephemeral “greater good.” Millions of abortions are defended in the name of “choice.” Endless and aimless military adventures are launched in the name of “security.” All sorts of aberrant social behavior are waved through in the name of “compassion.” Duly passed laws are struck down to satisfy “the evolving standards of decency.” G.K. Chesterton diagnosed the problem in his inimitably pithy way over a century ago when he wrote “Men do not differ much about what things they will call evils; they differ enormously about what evils they will call excusable.”
Justice Gorsuch now finds himself with the unenviable task of interpreting the law and the Constitution in a society that will not read his opinions but judge his decisions solely on whether they agree with the conclusion or not. His record thus far shows he is not afraid to do the good work of applying the law, as written, fairly and equitably. Let us hope he continues. Otherwise, the consequences could be disastrous.