As we gear up for another Supreme Court confirmation battle, pundits on both sides of the aisle have offered their opinions about the nominee and how various judicial philosophies could result in either the salvation or destruction of the republic. While much of this is nothing more than overly dramatic hyperbole, it does raise a fundamental question about judicial philosophy, and separation of powers.
One of the hot topics for discussion is the judicial philosophy of textualism, which was popularized by the late Justice Antonin Scalia. While many correctly characterize this philosophy as focusing only on the explicit words of the Constitution and statutes, as opposed to interpreting them and allowing them to evolve to conform with modern values, this analysis fails to recognize the full scope of the textualist philosophy.
When I was a college student, we had the extraordinary opportunity to have lunch with Justice Scalia. As he looked around the room, he asked how many of us had learned about how the Constitution was a “living, breathing document.” Of course, almost all hands went up, to which he retorted, “it isn’t. I say it’s dead. Dead, dead, dead.” We were shocked to hear a Supreme Court Justice say something so seemingly disrespectful about the Constitution that we had all sworn to support and defend. But then he explained.
He told us that the role of the judicial branch was to act as a check on the other branches of government and ensure that the Executive branch followed the laws, while simultaneously ensuring that the laws that were passed by the Legislative branch did not violate the Constitution. To do this fairly, the judicial branch must focus closely on the words of the statutes and the Constitution, rather than to imply new meanings to those writings.
It was the next part of Justice Scalia’s explanation that resonated with me, but seems to be lacking in today’s debate. He said that statutes and the Constitution should evolve, but this evolution is the responsibility of the legislature not the judiciary. There are many rights that the Constitution does not explicitly grant, but probably should. The answer is not to have unelected judges impose their personal beliefs to create these new rights, but to pass a constitutional amendment or a statute.
The reality is that people on both sides of the political aisle should want our judiciary to follow the textualist philosophy, because it ensures that the law is enforced equally and in accordance with the rules that the duly elected legislature passed.
And that’s where the hypocrisy of all the complaints by congressional representatives comes into focus. Their stated fears of textualist majority on the Supreme Court in fact highlights their own failures as legislators, as there are plenty of statutes that began as court rulings that were later codified by the legislature.
These principles are perfectly illustrated by the issue of abortion. Roe v. Wade holds that state laws prohibiting abortions are unenforceable. However, if the people want these prohibitions to be enduring, they should not rely solely on a court decision, but rather a statute, or a constitutional amendment. Similarly, states can pass laws or state constitutional amendments to protect abortion as a right, as many have. Consider, how the New York politicians are bemoaning the potentially devastating effects if the Supreme Court overturns Roe v. Wade. Ironically, their claimed fears are very real, only because New York never repealed the 1965 criminal statutes that make abortions felonies in New York. While that law is currently unenforceable, a potential reversal of Roe v. Wade would instantly turn many abortions in New York into felonies, while having no immediate effect on operations in most other states which, unlike New York, did change their laws to protect against any such reversal. Governor Cuomo has been pushing a legislative fix since 2013, but no action has come from the legislature.
Legislators on both sides of the aisle should strive to pass laws that are in accordance with the Constitution, and which reflect the needs and values of the people who elected them to that office. Well-crafted legislation, regardless of the party that wrote it, will withstand the scrutiny of a textualist court, while ill-conceived statutes that violate the Constitution will not. The risk is where unelected activist judges with lifetime appointments can substitute his or her personal values and beliefs rather than the text of the Constitution to pass a political judgment to uphold or strike down otherwise well-crafted legislation. And, if the Constitution and the Bill of Rights needs to evolve to keep up with our changing nation, then the appropriate procedure is to vote on a Constitutional Amendment, not let unelected judges interpret new meanings.
While this post focuses on the relationship between judicial philosophy and the legislature, the next post will address the very real danger of overreach and abuse by the executive branch when textualism is not followed.
Timothy Parlatore is a Navy veteran and prominent trial attorney. He is a graduate of the U.S. Naval Academy, he served as a Surface Warfare Officer and deployed twice in support of Operation Enduring Freedom. He later commanded a Naval Security Forces detachment and worked as an admissions liaison officer for the U.S. Naval Academy. He is the Founder and Managing Partner of the Parlatore Law Group and his legal practice focuses on constitutional issues, white collar investigations and defense, as well as complex civil litigation. He has tried several high-profile cases in New York City and now represents clients in jurisdictions across the country. He brings a unique perspective to issues that is a blend of his experiences as a military officer and a constitutional lawyer, always guided by his oath to support and defend the Constitution. To read more of his reports — Click Here Now.
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