Robb: Scalia was right, judges shouldn't matter

Robert Robb
Robert Robb

In a somewhat poignant paradox, the political ruction triggered by the death of Justice Antonin Scalia validates his view of the proper role of a judge in our system of government.

Given the close ideological divide in the Supreme Court, Republicans argue that filling the position should be left to the new president. Let voters weigh in on the kind of judge and court they want in the election.

President Obama, understandably, says he’s still the president and plans to fulfill his constitutional role of recommending a successor. And if Republicans don’t take up his nominee, or reject him or her, Democrats plan to paint them as obstructionists in the fall election.

According to Scalia, judges shouldn’t be this politically consequential.

Scalia didn’t think judges weren’t important, or that one judge was just as good as another. In making the argument for lifetime tenure in Federalist No. 78, Alexander Hamilton pointed out that being a judge required discernment and knowledge unlikely to be proffered for a temporary gig.

However, Hamilton also famously described the judiciary, of the branches of government, as “the least dangerous to the political rights of the Constitution.” That’s because Hamilton saw the function of the court as extremely limited, principally to enforce the constitutional restraints on the other branches: “(T)he courts of justice are to be considered as the bulwarks of a limited Constitution.”

And, according to Hamilton, judges were to apply the law as written and understood by those who crafted and enacted it: “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding on themselves collectively, as well as individually.”

Scalia’s originalism, or textualism, wasn’t some new or creative innovation. It was judging as the founding fathers intended.

The notion that Scalia and other originalists want to live in the 18th Century is a silly smear. The Constitution provides mechanisms by which, through solemn and authoritative acts, the people and their representatives can change what their government does, and in fundamental ways. Making such changes, however, isn’t the role of the judiciary. The role of the judiciary is to enforce the status quo ante until such solemn and authoritative acts are made through the political branches.

Hamilton scoffed at the fear that the judiciary could usurp the role of the legislature by interpreting laws through the “spirit” of the Constitution, rather than its letter. “In the first place,” Hamilton intoned in Federalist No. 81, “there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.”

But, of course, if the spirit of the Constitution is being divined, rather than its original meaning being applied, then power doesn’t have to be directly bestowed. It can be inferred. And so liberal jurists find authority, not in the Constitution itself, but in penumbras radiating from constitutional emanations and evolving standards of decency.

As Scalia pointed out, once judges depart from the actual text and original meaning, the Constitution is essentially meaningless. One man’s penumbra is another man’s emanation. There are no enduring constitutional provisions. There is no real rule of law. There is no bulwark as the founders envisioned.

The judiciary has become just another political branch of government. So, no surprise that its composition has become a supercharged political issue.

Now, Scalia was not a perfect practitioner of originalism. He signed on to Bush v. Gore, in which the Republican members of the court short-circuited the constitutional provisions for resolving election disputes by manufacturing an equal protection interest in the way ballots are counted. And his florid opinions often delighted more in intellectual sparring than unearthing prosaic historical context and meaning. Clarence Thomas’ spare opinions are actually better exemplars of originalist judging.

But the deviations were rare and the rhetorical flourishes attracted attention even in losing arguments. If not for Scalia, originalism might be a judicial dead letter. But because he couldn’t be ignored, it couldn’t be ignored or completely forgotten.

The political brawl that has broken out over his successor undoubtedly would have appalled and disappointed him. But, in a strange way, it would also have to leave him feeling vindicated.

Robert Robb is a columnist for The Arizona Republic.