In his Harvard commencement speech, former Supreme Court Justice David H. Souter continued in the footsteps of the late Justice William J. Brennan Jr., whom Justice Souter succeeded. In a 1985 speech at Georgetown University, Brennan altered the debate over lawmaking by judges. He attempted to justify it, saying:
“For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time.”
Since the Constitution’s ratification, it had been settled in the public mind that federal judges are not authorized to engage in lawmaking. As stated in Federalist No. 78, judges “have neither force nor will, but merely judgment.”
The public debate since has concerned whether particular decisions did or did not embody judicial legislation. Almost never did anyone publicly assert that judges should be legislating.
Brennan announced publicly the revolution that had occurred long before in law schools. For decades, future lawyers have been taught to question everything - except that is, the article of faith that judges not only do, but should, engage in policymaking through the balancing of interests. Legal education redefined judging to include the very essence of legislating.
Although Brennan’s view has long dominated law schools, Justice Antonin Scalia has challenged it on all fronts since joining the court in 1986. In judicial opinions and public lectures, Justice Scalia continually attacks the “living Constitution,” i.e., one made up by judges. Contrariwise, former law professor Barack Obama attempts to gain public support for lawmaking judges by portraying them as having “empathy.” His first Supreme Court nominee, Sonia Sotomayor, however, publicly rejected this standard and embraced the traditional understanding of the judge as interpreter, not maker, of law.
In advance of the hearings on nominee Elena Kagan, Justice Souter has renewed efforts to justify lawmaking judges. His speech caricatured adherence to the Constitution’s text as the method of “fair reading” according to which “deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.” Neither Justice Scalia nor any knowledgeable “originalist” (one committed to the Constitution’s text) follows such a simple-minded method of interpretation. Otherwise, Justices Scalia and Clarence Thomas would never disagree.
Having set up the straw man, Justice Souter argues, “The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.” That is precisely the issue: What is it that “judges have no choice but to do”?
The choice is between two distinct modes of decision-making. Legislators make law; they do not write opinions. Legislators can legitimately make laws to govern future conduct only. Retroactive legislation is generally illegitimate; thus, retroactive criminal legislation violates the Constitution’s ex post facto provision. Legitimate judging, on the other hand, concerns the existing law. Interpretation of the existing law, contrary to lawmaking, focuses on the past. Legitimate interpretation of existing law explains the result in a well-reasoned opinion.
Some say there is no difference between interpreting and making law. Certainly that it is true for judges who make law. Competent judges, however, employ accepted means of interpretation to find the meaning of existing law. Thus, they often reach results they believe are dictated by the law but with which they may not agree.
The “living Constitution” has been created as cover for judges and professors who believe either that the Constitution’s meaning cannot be known or that its meaning should not bind judges. For Justice Souter, the Constitution is a “pantheon of values.” That is a disordered abstraction that renders the Constitution nonbinding because it is open to any and all interpretations.
Lawmaking judges and justices will continue to take the bench until senators focus on the judge’s oath. The question to each nominee should be this: In taking the oath, can you truthfully swear (or affirm) that you will support and defend the Constitution as written and that you can do so - as stated in the oath - “without any mental reservation or purpose of evasion”?
John S. Baker Jr. is a law professor at Louisiana State University.