Government of Judicialators

The bitter polarization over court appointments is clear evidence that we are a country not of laws, but of men.

If every judge, right or left, refrained from applying an individual “judicial philosophy” what could be the debate? Unfortunately, when our esteemed Senators ask questions about “judicial philosophy” they’re looking for indications of specific social bias, not adherence to Constitutional principle.

The judicial philosophy from which citizens of the United States are supposed to benefit was described by those who wrote the Constitution. They used neither the words “strict constructionism” nor “living document.” They expected neutrality. They got judicialators.

Judicial legislation has a long statist history; meaning that its penumbra has emanated from every political direction.

Plessy vs. Ferguson, for example, was a decision of legislatively inclined judges. It extended a Lousiana law to the entire country and enshrined the concept of “separate but equal”, even though the 14th amendment clearly did not* anticipate forcing blacks and whites to sit in separate railway cars. A plain reading of Section 1 of the 14th Amendment would tell you Plessy was decided wrongly:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Even if the Court was unwilling to say that any law preventing a person, black or white, from occupying a particular public space was not an abridgement of “the privileges or immunities of citizens”, it could have turned the case down. Cowardly, of course, but without any interference from the Supreme Court this pernicious doctrine would likely not have spread nationwide and would probably have been short-lived in Louisiana. The railway companies opposed the Lousiana statute from a market perspective, they had to be forced to it.

“First, do no harm.”, apparently does not apply to judges. Justice Henry Brown, writing for the eight-person majority:

That [the Separate Car Act] does not conflict with the Thirteenth Amendment, which abolished slavery…is too clear for argument…A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races…The object of the [Fourteenth Amendment] was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.

Justice John Harlan, alone in his dissent, set the stage for Brown vs. Board of Education, which overturned Plessy 52 years later.

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law…In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case…The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to adopted the recent amendments of the Constitution.

Brown is generally viewed as activism, but it was simply righting the earlier activist wrong.

This is relevant to Judge Samuel Alito’s SCOTUS nomination. If you read Charles Krauthammer’s piece you can detect Alito’s refusal to

[deliberately confuse] a constitutional judgment (almost invariably based on the Supreme Court’s own precedents) with a personal policy preference.

If we were a government of laws that sentence would have been unnecessary.

Alito’s decisions should give both left and right wing judicial pragmatists pause. This is probably as good an indication as you can get that he’ll be a tolerable Supreme.

*This is quite different from “did not clearly”.