Calling Balls and Strikes; or, What is a Conservative Judiciary Anyway?

The Amy Coney Barrett victory lap is in full swing. Despite the embarrassingly collegial and chummy meet-and-greet in the midst of a pandemic, which possibly infected multiple conservative members of the Senate Judiciary Committee, Barrett’s path to the Supreme Court moves ahead. This begins one of my least favorite political circuses on Capitol Hill: the discussion of judicial principles. The pattern is predictable: expect bipartisan praise for her “brilliance” and “experience” (despite her being the least experienced nominee since Harriet Miers. Remember Harriet Miers? Those were the days.) Lawyers will join hand-in-hand and sing praises for her “expertise,” and of course her excellent “judiciousness.” Those with an active memory will remember that they had this exact dog and pony show for Brett Kavanaugh, before his signature contribution to the national discourse was the phrase “I like beer.” It is a timeworn smokescreen trying to build legitimacy by and for the legal profession.

For the Democrats, the focus will be on Barrett’s stance on abortion, with maybe some brief intimation of how she is an archconservative. There will probably be some discussion of her approach to LGBT rights and maybe voting rights too, if we’re lucky. (Also probably some weird tip-toeing around her strange religious views, which Dianne Feinstein royally stepped in last time.) All of this glides right past the real issue for Americans; what does it mean to have a conservative judiciary? What is the animating philosophy of conservative lawyers? And what exactly do we have to look forward to with a court where the deciding middle vote is (gags) Brett Kavanaugh?

The Judicial Branch — A Primer

The judicial branch is there to interpret the laws. I’m pretty sure I remember that from 7th grade civics class. The End.

That’s about all most Americans know about the judicial branch, and that is no mistake. Unlike the other two branches, which are at least partly populated by politicians who love to trumpet their achievements from the rooftops (or cable TV), the judicial branch likes to mostly operate outside of the spotlight. Sure, sometimes we celebrate the way they protect freedoms (like Obergefell v. Hodges) or bemoan their overreach (like Shelby County v. Holder), but mostly we do so on the basis of their political ramifications, not on how well they interpreted the law. But interpreting the law is the lion’s share of what the judiciary does; it takes a whole slew of poorly written laws spanning entire centuries of dysfunctional Congresses, many of which are openly contradictory, and tries to forge something resembling a coherent legal structure out of it. Imagine trying to figure out what your boss meant in an email he pounded out at 4:30 p.m. on a Friday, only your boss is a 535-person committee, most of whom actively hate each other. That’s the judicial branch’s job, and it’s just as elegant and high-minded as it sounds.

The other function of the judicial branch is constitutional review. This is a power only reserved for the Supreme Court, which was determined by the Supreme Court. But everyone else goes along with it, so here we are. Interpreting the Constitution is mostly easier than interpreting acts of Congress since the Constitution is quite short. The problem is that the Constitution doesn’t actually make any sense, totally under-explains certain very important aspects of government, and has lots of weird asides about topics like quartering soldiers during peacetime. But whatever. Lots of people seem certain that they know exactly what the Constitution means, and that includes the judges of the Supreme Court.

There is a third function of the judicial branch, one more alluded to than actually bodied out. Supposedly the judiciary is there to protect minority rights from a tyranny of the majority. This is the role that most people feel in their bones. It’s why we celebrate Brown v. Board of Education and shake our heads at Korematsu v. United States. This is an insanely complicated task, and it requires determining the exact philosophical limit of democratic powers and what exactly is a minority right: which minorities get them, and how far do they go? But the judicial branch totally ignores this purpose in its day-to-day functioning and only talks about it abstractly when it tries to justify why it exists to the public. Anyone hoping to find meaningful meditations on the experience of oppression in the American system should look elsewhere.

The Conservative Answer

Modern American movement conservatism is well known to Americans. It’s exactly what you think it is: a mildly strange alliance of businessmen, religious folks, and cultural conservatives. This conservatism believes in deregulation, low taxes, eliminating legal abortion, scaling back immigration, etc. You know it well, whether you want to or not. And, despite its follies and contradictions, it is relatively coherent. It has its foundational values: fear of government and foreigners, love of business and (a certain strain of) Christianity. But simultaneous to the emergence of modern conservatism, a new judicial philosophy emerged. Judicial conservatism has three main “tenets”: originalism, textualism, and judicial restraint. (Actual conservative judges usually focus on only one aspect of these three, for reasons we’ll get into.) The strange thing is that these principles have only very tenuous relationships with movement conservatism. And yet their outcomes dovetail quite conveniently with the conservative agenda. This is why it’s such a mistake to treat principled judicial conservatism seriously. Anyone who spends half a second thinking about it immediately recognizes it as bad faith: no one is arguing for originalism or judicial restraint on their merits — they are arguing for them as a front for their underlying ideological goals.

Compare this to liberal judges. Liberals care about incremental improvements; liberal judges talk about incremental changes. Liberals care about equality and fairness; liberal judges talk about equal outcomes. Liberals care about access to voting and protecting abortion rights; liberal judges talk about abortion and voting rights. Yes it means that liberal judges don’t really have a judicial philosophy per se (besides some vague gesturing toward a “living Constitution”), but it does mean they are much more honest about their animating principles. They admit to believing in a judicial branch that is inflected with ideology, just like every other branch of the government.

Look, I’m not saying I know that Clarence Thomas is a liar when he says that he believes that we should strike down minimum wage laws because they contradict the original understanding of the Constitution. I’m just saying that his “originalism” also perfectly dovetails with the decisions he wants to make anyway based on his conservative ideology. Maybe he’s convinced himself that he is a perfect originalist, maybe he knows he’s a hypocrite. I don’t know and I don’t care. My point is that we should not take judicial conservatism seriously despite the fact that lots of very “serious” people talk about it. It’s not a real legal philosophy, it’s just a sham — an obvious intellectual front for a political movement. And yet I’m not going to take my own advice. It’s time to talk about…

Conservative Judicial Philosophy™

Amy Coney Barrett has discussed in her confirmation hearings how she thinks of herself as an originalist, in the same mold as Scalia was before her. Originalism, if we take it seriously, is the belief that the Constitution should be interpreted as closely to how it was understood when it was written, what is called original public meaning. (To many modern commentators and judges, “original public meaning” is often elided with what the Founders intended, but scholars insist there is a distinction.) At first blush, this is charming. It taps into the belief that judges shouldn’t just decide cases on their personal sympathies, and it feeds into the Founding Fathers worship that is a hallmark of the cultural Right. But I am honestly confounded as to how any intellectual could ever look at originalism and not immediately laugh it out of the room. Who is the “original public” whose understanding we are supposed to defer to? Are we just talking about people who voted for the Constitution or should we take seriously the Anti-Federalists, who thought that the Constitution would lead to a tyrant? Even among people who voted for the Constitution, there was obviously a lot of confusion as to what exactly it meant (as I said, it’s not very clearly written) and only a very few passages received a lot of public scrutiny. The rest were left mostly unexamined, so does originalism have nothing to say about them? In practice, originalism defers a lot to the people who wrote the Constitution as the original explicators of public meaning, but why? The other source is contemporary newspapers, and they are about as close to matching public understanding as modern newspapers, which is to say not very close. Scalia, Thomas, and Barrett have never received formal training in historical analysis, yet their judicial philosophy implies that Constitutional review should be handled by historians. So how much do they believe in originalism? Obviously not enough to actually defer to anyone else, so I’m saying not much.

Textualism is another “neutral” interpretation principle that judicial conservatives like to talk about. Rather than focusing on original intent, textualists like to say they base their interpretations on the modern meaning of the words in the statute. Textualism completely contradicts originalism, but conservatives mostly elide that fact by talking about originalism when interpreting the Constitution and textualism when they interpret everything else. There are some “principled” textualists like Alito who don’t sign on to originalism, but there are also plenty of originalist-textualists like Gorsuch who never bother explaining why sometimes they care about original intent and sometimes they don’t. Textualism also has that surface charm of ostensibly eliminating personal sympathies from judicial decision-making. But in practice, it’s mostly just disingenuous. Story time: In 3rd grade, my teacher wanted to demonstrate the limits of language, so she asked us to teach her how to make a peanut butter and jelly sandwich. We told her to put peanut butter on a slice of bread, and she proceeded to take an unopened jar of peanut butter and place it on top of a slice of bread. We quickly realized that no amount of minute instruction could avoid being misinterpreted if she wanted to be obtuse. Textualists are like that, only in earnest, and they have law degrees.

Finally, we have judicial restraint. This is closest to true conservatism, as its animating principle is a skepticism toward change. It is less of an interpretive philosophy than the other two principles and more of a general guiding trend; all else being equal, less judicial action is better. Like the other principles, it claims to tamp down on personal sympathies. Judicial restraint is fine in principle, it’s just not that meaningful. Once upon a time, when judicial conservatism was in the minority, it was mostly an argument against liberal judges. Now that judicial conservatism is ascendant, it’s mostly used as a smokescreen while originalism plows like a Mack truck through all of twentieth-century jurisprudence. Everyone thinks the judicial branch should show restraint on everything but the really important stuff, we just all disagree on what the important stuff is. It’s very hard to take Justice Robert’s commitment to judicial restraint seriously while he guts the Voting Rights Act, but I applaud it when it keeps him from striking down the Affordable Care Act.

Again, I have a sour taste in my mouth after these paragraphs of taking conservative judicialism seriously because it’s not a serious philosophy of interpretation. But despite their obvious clownishness, these principles are taken very seriously by otherwise smart people. That is part of their point: they are an intellectual smokescreen that keeps conservatives from having to defend their decisions from an ideological standpoint. They also are custom-made to exploit legal-minded folk. Each of these philosophies is designed to take advantage of people who think that the actions of the judicial branch should somehow be neutral and determinative through argument — or in other words, lawyers. But interpretation, even legal interpretation, will always be inflected by ideology. To pretend otherwise through neutral-sounding interpretive principles is disingenuous.

Ramifications

During the Barrett confirmation hearings, Democrats have mostly focused on healthcare and abortion. This makes political sense: an archconservative Supreme Court is likely to make highly controversial decisions around those issues. Those are important issues — they will likely have huge repercussions for the lived experiences of countless Americans. But having a conservative court will have much darker and far-reaching consequences than just the banner issues. You see, the thing that is leached out in each of the conservative judicial philosophies is room for personal sympathies. Those personal sympathies include ideas of kindness, fairness, or justice (ironic considering their title as Supreme Court judges). Conservative judges aren’t just heralds for conservatism’s pet issues. They also propagate a smothering cruelty within our legal system.

Let’s take a look at an example. Late in 2019, the Supreme Court heard arguments in Hernández v. Mesa. The facts of the case were such: Jesus Mesa Jr. was a border patrol agent. In 2010 he shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican citizen. Hernández had been playing a game where you run up to the fence on the border, touch it, and run back. Mesa shot across the border and killed Hernández. The question was whether Hernández had rights under the Fifth Amendment of the Constitution. The Fifth Amendment states “No person shall be … deprived of life, liberty, or property, without due process of law,” so you could be forgiven for thinking that the case should be open and shut. You’d of course be wrong. In a 5–4 decision, the Court held that Hernández’s family could not sue Mesa for violating his rights. The conservatives held that the new case did not meet the standard for suing federal agents laid down in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The court had been chipping away at the Bivens standard, and this case was a continuation of that pattern. But Gorsuch and Thomas went a step further and said that Bivens had been wrongly decided and should be overturned. Their position is this: the Constitution binds laws, not actions of federal agents. Even though most people believe their rights have a claim in the legal system, for the conservatives of the court, your rights can only be violated by laws, not by government agents. (This should put to bed the weird claim that Gorsuch will protect you from government overreach.) All of this is somewhat beside the point. There were some fine points of law; it was an unusual case after all, with a shooting crossing international borders. But those points were arguable. The liberals obviously disagreed. The conservatives, in service of a nebulous textualism, put forth a needlessly cruel and unjust decision, not to mention one that contradicts the most straightforward textual understanding of the Fifth Amendment.

Another example, and an illustration of the character of the woman we’re about to elevate to the Supreme Court: In late 2019, a three-judge panel of the United States Court of Appeals for the Seventh Circuit heard the case Anna Chronis vs. United States of America. Anna Chronis had a bad Pap smear and was trying to figure out who she could sue for damages. She wrote to a bunch of organizations attempting to find someone who would explain her options. One of those organizations was Centers for Medicare & Medicaid Services (CMS), which, unbeknownst to her, was one of the entities she could sue. However, the Federal Tort Claims Act states that you have to ask for a specific amount of money before you can sue a federal agency. Since Chronis had only asked for money ($332) in an attachment and not in the text of her email itself, the court dismissed her claim. Judge Barrett wrote the decision, and it is brutal. Taking a step back, Chronis wrote some sixty pages of emails trying to figure out who to sue. She was asking for a piddling sum. And Barrett smacked her down on a technicality. And it’s not even a good technicality: Chronis had included a request for a sum in her email attachment, she just didn’t know she could direct that request at CMS. Barrett’s decision in this case is a cruel extension of textualism.

This is the under-talked-about outcome of Barrett’s nomination to the Supreme Court and the conservatism of the judicial branch in general. Their decisions about legal disputes with political valences will at least be discussed in the public sphere, and Congress might pass laws that reign in the Court. But the petty cruelties of a judicial philosophy that has no space for human kindness or justice will permeate the judiciary. There is another way: A judicial philosophy that interprets laws in a way that protects the powerless and defends the rights of minorities. But that would require that we put to bed the illusion of judicial neutrality once and for all.