As you know, many of my classes deal with politics or political change. So, a couple of weeks ago, I started out a few of them with a brief discussion of the retirement of Stephen Breyer. Not surprisingly, most of my students had never heard of him, and only a few had any idea that there was any news concerning the Supreme Court. Students at my school aren’t particularly politically plugged-in and don’t tend to pay much attention to the news.
The first thing I had to do was go over what the Supreme Court does, because only about half of my students really understood that. And I don’t necessarily blame them for that. Civics education isn’t exactly a big emphasis in a lot of American schools. So we talked for just a few seconds about how the Supreme Court’s job isn’t to decide guilt or innocence, but to decide whether laws are constitutional or not. That’s an important distinction and is really what makes them relevant to a lot of what I teach.
Then, I was explaining to a class why it made a difference that Breyer was retiring now. And I was talking about the political make-up of the Court. I did the best I could to describe the chess game that is balancing the left wing and the right wing of the Court, and how that has been thrown out of whack since Trump got to replace three Justices. At that point a student raised his hand with a question. I called on him to see what I could clarify.
“Yeah,” he began. “So if the job of the Supreme Court is just to decide whether the law is constitutional or not, what does it matter if they are conservative or liberal?”
“Wow,” I stopped in my tracks. “What an EXCELLENT question.” He smiled. “No, really, that is a truly, truly great question. Points to you!” I told him. He looked pretty pleased with himself.
So I tried to explain by using Clarence Thomas as an example. I described how he followed a philosophy that was a very conservative philosophy steeped in a tradition called “originalism.” I said he basically thinks the law should be exactly as it was when the Founding Fathers wrote it. (When I said that one or two students laughed out loud and one said, “that’s ridiculous,” so it would certainly be interesting to have these kids in a legal rhetoric class.) And I said you can see how that would make a difference if you were trying to decide about the constitutionality of something like affirmative action cases as opposed to somebody who thinks the law should evolve with us. And they seemed to get that.
“That’s a very conservative philosophy, you see. There are different theories for how to interpret the law. Some people think it should be just based on the words themselves, some people think it should be the original meaning, some people think it should be in current contexts – and all of that makes a difference in what the outcome is. And those tend to fall along political lines.”
They were nodding like they got it, anyway.
But it occurred to me as I was wrapping up my week that maybe we’re not all familiar with these various lenses through which Justices interpret the law.
So today I thought I would give us a brief run-down of the main ways of interpreting the law. This isn’t a thorough course on constitutional interpretation, just a primer on some of the different lenses through which people view the law. But as we have highlighted in the past, it really makes a difference in how Justices approach cases. And sometimes it means they can surprise us, but more often it means they are relatively predictable. And there’s no real right or wrong way (though if you ask me personally, there are definitely some that make a whole lot more sense than others), it’s really a matter of your personal perspective. That’s why personal politics matters. Because personal politics colors your tendency toward constitutional interpretation.
First let’s talk about textualism. People often talk about textualism because it is popular with conservatives.
According to Brandon J. Murrill,
Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. They are concerned primarily with the plain, or popular, meaning of the text of the Constitution. Textualists generally are not concerned with the practical consequences of a decision; rather, they are wary of the Court acting to refine or revise constitutional texts.
The Ballotopedia entry on Textualism explains that it is consistent with the Plain Meaning Rule. The plain meaning of a word is determined by its dictionary definition, its placement in the body of the text, and its common usage at the time the statute was written. A judge that relies solely on the literal or plain meaning of a text does not consider supporting or supplementary sources, such as modern social policy or legislative history.
Textualism is interesting, though, because it doesn’t ALWAYS mean there will be a conservative result. Gorsuch is a renowned textualist. That’s one of the main reasons he was chosen to replace Scalia – because Scalia was a textualist and conservatives wanted somebody to follow in Scalia’s footsteps. But as Gorsuch showed us in his Bostock decision, textualism is bound, quite literally, by the text, not by political ideology. That’s why Gorsuch, one of the Court’s leading conservatives, wrote an opinion that protected LGBTQ+ rights that so ticked off conservatives.
Next let’s consider original meaning, or originalism.
Original meaning asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted”. This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five.
Textualism is often erroneously conflated with originalism, and was advocated by United States Supreme Court Justices such as Hugo Black and Antonin Scalia who explained”[it] is the law that governs, not the intent of the lawgiver.”
Whereas Scalia and Gorsuch are textualists, you might classify Thomas as more of an originalist. He wants everything to be understood as it was when it was written. What did the founding fathers mean? Then that’s what the law means. My students get somewhat frustrated with Thomas’s approach to the law because he applies this to things like free speech for students’, and in his estimation in the colonial days children were the property of the father and had no rights outside of what the parents, specifically the father, granted. So he thinks that’s what the Constitution grants kids today. He basically hates kids. But it’s what the founding fathers must have intended – so it’s good enough for 2022.
Another way of interpreting the Constitution is by Judicial Precedent.
The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law. For most, if not all Justices, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
This isn’t as much an ideological way to interpret the constitution as it is a procedural way. It’s kind of like the doctrine of stare decisis, which is the legal principle of determining points in litigation according to precedent.
If you stick to this way of interpreting the Constitution, there aren’t a lot of surprises. What has come before guides the Court now. Precedent sets the groundwork for current and future decisions. For what it’s worth, the conservative leaning Court today does not seem to be interested in judicial precedent. They’re definitely making their own rules. But you don’t hear any of those complaints about legislating from the bench from the usual corners. So weird.
Yet another approach to constitutional interpretation is pragmatism.
A Pragmatist approach often involves the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations. One flavor of pragmatism weighs the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome. Under another type of pragmatist approach, a court might consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law.
David Landau writes,
It has been argued that pragmatism is inevitably conservative, since it would balance individual rights against state interests rather than enshrine them or treat them as trumps. Landau responds that this is not at all inevitable, as shown by liberal pragmatists like Farber and Sherry (or, for that matter, the later decisions of Judge Posner himself). Nor is it sufficient to contend that pragmatism is an “unmoored” approach that fails to provide certainty; as Landau argues, that hardly distinguishes it from formalistic approaches, with their false certainty in the abstract and messy results in reality. Law, he writes, “can be highly open-textured and eclectic without abandoning constitutional principle, even in paradigm shifting cases.”
Then, there is the perspective of Moral reasoning.
This approach argues that certain moral concepts or ideals underlie some terms in the text of the Constitution (e.g., “equal protection” or “due process of law”), and that these concepts should inform judges’ interpretations of the Constitution.
This approach could be somewhat controversial because it can be rather personal. On the one hand, having ideas like equal protection at the heart of our decisions sounds great. But on the other, who decides what concepts will undergird the decisions? Whose morals will guide these decisions? If you think morality is the most important thing, you may love this idea. But if you don’t’ like the morals of the person making the call, this might make you uncomfortable.
There is the National Identity Or “ethos” perspective to take on the law, as well.
Brandon J. Murrill explains,
Judicial reasoning occasionally relies on the concept of a“national ethos,” which draws upon the distinct character and values of the American national identity and the nation’s institutions in order to elaborate on the Constitution’s meaning.
This opens up a whole new can of worms. We’ve talked in the past about what a mess American identity is. If I polled ten people about what it means to be an American, I’d get at least 15 answers. If somebody is making decisions based on what it means to be American, they are making decisions based on a made up idea. If you like their definition, you’ll like their decision. If not, you won’t be a big fan.
Some Justices use Structuralism to determine the law.
Structuralism is a way judges use by searching for the meaning of a particular constitutional principle only by reading it against the larger constitutional document or context. Judges try to understand how a particular ruling fits within the larger structure of the entire constitution.
According to Sotirios A. Barber and James E. Fleming,
Structuralists contend that interpreters can avoid moral judgments in hard cases by reflecting on the structures of government, i.e., the Constitution’s overall arrangement of offices, powers, and relationships. The Constitution’s leading structural principles include federalism, separation of powers, and democracy. This shows that Americans have always disagreed on structural questions and their implications for the constitutional rights of individuals. Interpreters cannot avoid philosophic responsibilities through noncontroversial inferences from the Constitution’s structures. A responsible approach to structural questions demands a fusion of historical, philosophic, and scientific inquiry. It cannot avoid philosophic reflection and choices.
Then there is the tactic of using Historical practices.
According to Constitution Annotated, on Congress.gov,
Judicial precedents are not the only type of precedents that are arguably relevant to constitutional interpretation. Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning to many judges, academics, and lawyers. Indeed, courts have viewed historical practice as a source of the Constitution’s meaning in cases involving questions about the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer…..
The debate over historical practice as a mode of interpretation echoes many of the elements of debates over original meaning, judicial precedent, and arguments based on a national ethos. Functionalists, for example, attach considerable importance to historical practices as a source of constitutional meaning, while formalists generally regard them as irrelevant. Those employing this method often argue that, when the text of the Constitution is ambiguous, the use of historical practice has legitimacy as an interpretive tool. They also contend that such an approach provides an objective and neutral basis for decision making, leading to more predictability and stability in the law upon which parties can rely. Moreover, according interpretive significance to historical practices in cases concerning the allocation of power among the branches of government may help to preserve settled expectations that have resulted from long-standing compromises among the branches regarding such allocations.
Those opposing reliance on historical practices as a source of constitutional meaning argue that it may be difficult to establish definitively what the relevant historical practices are in order to interpret the Constitution properly. They suggest that not all practices are authorized by the written text and that historical sources may differ and thus might not be helpful in illuminating patterns in historical practices. They also warn that this methodology could allow judges to engage in a form of what is called law office history—simply choosing the sources that support the historical practices they wish to ratify or reject. Thus, it could be argued that historical practices may not lend themselves to easy or clear interpretation. Moreover, they can lead to results inconsistent with the original meaning of the Constitution. Another possible problem with reliance on historical practices in constitutional interpretation, according to its critics, is that courts could end up legitimizing long-standing historical practices, such as slavery or segregation, that offend modern moral principles. Indeed, giving historical practices special place in constitutional interpretation could lead courts to fail to protect minority rights, or to preserve the basic structure of government established by the Constitution. At the same time, reliance on historical practices might undermine the political branches when they are attempting to be innovative or opt for novel solutions to old problems.
Each of these perspectives is more or less popular with conservatives or liberals. And each perspective changes the way the law is decided.
Whether you like a Justice or not may be a matter of just whether you agree with them or not, but at the heart of that may be whether you agree with how you interpret the law, even if you don’t know it.
The law isn’t just the law. It is seen through a lens that informs how you understand WHAT THE LAW IS. Just like you interpret literature or history or really, any facet of life. And that means it matters who sits on the Supreme Court. And who gets to pick them.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.