I’ve frequently been asked in the past few weeks what my father, the late Supreme Court Justice Antonin Scalia, would think about the contentious battle just waged over Judge Brett Kavanaugh’s nomination to the nation’s highest court.
Would he have been surprised by the heated debate, political maneuvers, protests, last-minute delays and uncorroborated allegations of sexual misconduct that we saw during now-Justice Kavanaugh’s confirmation process?
Although I don’t think my father (or anyone) could have predicted the twists and turns of the past several weeks, I don’t think he would have been shocked by the no-holds-barred fight over a Supreme Court vacancy, either. He long ago warned Americans about the excessive intrusion of politics into the judicial appointment process. And he explained that a large share of the blame belongs to the justices themselves.
My father believed that a major reason the judicial confirmation process has become so heated is that federal judges too often exceed the role envisioned by our nation’s founders and usurp the power of elected representatives.
Alexander Hamilton famously argued “that the judiciary is beyond comparison the weakest of the three departments of power” and that “the general liberty of the people can never be endangered from” the judicial branch.
But Hamilton qualified that claim. He said it would only be true as long as “the judiciary remains truly distinct from both the legislature and the Executive.” Hamilton agreed with the French political philosopher Montesquieu, who warned that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”
Maintaining that separation means limiting the role of judges. My father explained that for most of American history, Supreme Court justices recognized that the meaning of legal texts – including the Constitution – did not change.
Judges understood that their job was to interpret that original meaning – referring to tradition, history and precedent when necessary. When dealing with laws and statutes, this approach is known as textualism; in reference to the Constitution, it is called originalism.
But over the course of 20th century, judges began to think of the Constitution as a “living document” whose meaning changed with the times. That may seem like a reasonable idea at first; after all, the Constitution was written in 1787 and a nation’s interests and priorities can change dramatically over generations.
Shouldn’t the Constitution keep up with the times?
But in fact, the Constitution establishes democratic processes, both in the states and in Congress, with the flexibility necessary to adapt to changing circumstances. This can happen through new laws and through constitutional amendments. That is, for example, how women earned the right to vote: not by judicial decree, but through the 19th Amendment.
On the other hand, if the Constitution is a living document, consider who ends up determining its new meaning: unelected judges with lifetime appointments – men and women who are intentionally protected from the will of voters at the ballot box.
As a result, many debates and compromises that should have occurred in the political realm have been short-circuited by the judicial branch for decades.
The most notorious example of this is Roe v. Wade, the Supreme Court’s 1973 decision discovering a constitutional right to abortion. The justices believed they were settling a contentious national issue. But they were doing nothing of the sort; they were inflaming it.
When Americans realized that lower court judges and Supreme Court justices were exercising their will rather than just their judgement, judicial nominations became much more heated. My father didn’t like this change, but he understood why it happened.
“A freedom-loving people respectful of the rule of law may be expected to let lawyers decide what a constitutional text means; but they cannot be expected to let lawyers decide what a Constitution ought to say,” my father said.
Or as he put it in another speech, “no court can expect to remain immune from severe political pressure … if it assumes the role of inventing solutions for social problems instead of merely applying those solutions prescribed in democratically adopted statutory or constitutional text.”
After all, lawyers know the law better than the rest of us, but their value judgments are not necessarily superior to anyone else’s.
One way to help make our judicial confirmation battles less polarizing, then, would be for judges to return to the more limited role they had held for most of our nation’s history: applying laws and statutes according to their text and interpreting the Constitution according to its original public meaning, using history, tradition and precedent as guides.
This wouldn’t make every Supreme Court decision unanimous. Judges can interpret history and tradition differently, and sometimes the meaning of a text is ambiguous. Nor does it mean courts would never again make a controversial ruling.
But if federal judges returned to the more modest approach our Founding Fathers envisioned for them, they would be less likely to rule according to their preferred policy preferences and more likely to leave political decisions to our elected representatives.
This change in perspective is long overdue, but it will not happen overnight. Right now, it is primarily only Republicans who see the value in originalist judges like Brett Kavanaugh – and we saw the lengths to which Democrats fought his confirmation.
My father devoted considerable time to delivering speeches across the country and around the world explaining the advantages of originalism and textualism. He knew that persuading people to this way of thinking would help return the judicial branch to its proper status as what Hamilton famously called “the least dangerous branch” and help subdue the intensity of the nomination process.