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How To Think About Supreme Court Nominees

Alexander Hamilton was a remarkably prescient man and we, to an astonishing degree, live in the Republic he created. His vision of a commercial Republic clearly has won the future even if his opponent, Thomas Jefferson, may have won our hearts with his vision of an Agrarian future.

Yet on one point at least, he may have been in error. Writing in Federalist No. 78, Hamilton explained that the Judiciary branch was the “least dangerous” of our three governmental branches — the executive, the legislative and judicial. As he put it:

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.

The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.

It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Yet today, it is not as obvious that this is true.

The traditional understanding of the role of a Justice of the Supreme Court in Constitutional Law was to attempt to read the document as it read to those who adopted the document.

If you didn’t like what was adopted, you had an obligation to either pass a law or to amend the Constitution.

More recently, however, a movement build around the “living constitution” has grown, and this belief is that the meaning of the Constitution changes as the attitudes of the people and the times change.

The contrast between these two attitudes can be seen in how advocates dealt with an issue such as the vote for women.

Justice Antonin Scalia made the point:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment.

Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.”

But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

This was a dramatic change. If a Justice on the Supreme Court would read the text, try and understand what it meant to the people who adopted it and do so without regard to their own personal policy preferences, then we could look to select the best lawyers for the Supreme Court. We would want top lawyers, fair people, honest people who could read intelligently, accurately and squarely.

It wouldn’t matter what their opinions were on any issue, be it the woman’s right to vote or abortion, because they are interpreting a text and it would be common to have Justices say “If I were a legislator, I would vote in favor of XX. However, the Constitution is silent on that subject so either get the legislature to pass a law on that matter or get a constitutional amendment passed.”

For all the industry spends on government relations, we tend to stay out of the big battles. This is smart as the industry has no distinctive opinions on these matters and, in any case, we are too small to have much influence. But our prosperity is more likely to be determined by the success of the polity than by the regulation of a pesticide so, especially in times like these, those who can should try to make a contribution to the public debate.

We gave it our shot and so the Pundit wrote a piece for The Weekly Standard, titled The Right’s Supreme Court Acquiescence, which drew heavily on Justice Scalia’s work to deal with the dilemma of a conservative movement torn between its belief that the ideology of Supreme Court Justices ought not to matter and the reality that it does.

You can read the piece here.

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