The last couple of weeks have been important ones for the Supreme Court as it has released several of its more important and controversial decisions. While I am going to discuss some of these cases in the near future, I first want to say something about the Court itself.
The Supreme Court has taken a beating over the last couple of years, and I believe much of it has been unjustified. Every time the Court makes a ruling that appears to support conservative beliefs, it comes under attack as being biased, and the left begins talking about the need to add more justices. At the same time, when the Court rules against President Trump – which it has done on many occasions – it is attacked from the right. Yet, it’s the same Court. If it is being criticized by both sides, that suggests it is doing something right and, hopefully, following the law rather than political ideology.
I have some concerns about these attacks. For the left, why is it acceptable when a liberal Court reaches liberal decisions, but it becomes a constitutional crisis when the Court favors the right? It seems that lately, many on the left feel they have a monopoly on outrage when it comes to government. They see their anger toward elected officials or Supreme Court decisions as justified, but struggle to understand why the right would feel the same way when decisions go against them.
As for the right, many seem to believe that because a Republican president nominated these justices, they owe their allegiance to conservatives and should always rule accordingly. The reason the judicial branch is independent, and its members are not subject to reelection, is that justices are supposed to follow the law and the Constitution, not political allegiance. I recognize that there are some justices on the current Court who appear to vote primarily according to their political beliefs, but as a whole, this Court has demonstrated a willingness to follow its interpretation of the law over ideology. If that were not true, it would not be drawing so much criticism from both sides over its recent decisions.
In my History of Constitutional Law class, we spend a good deal of time discussing the difference between what we want to be right and what is legally right. There are many cases throughout history where I wish the outcome had been different, but still agree with the legal reasoning behind the decision.
There was one such case among the Court’s recent rulings. In National Republican Senatorial Committee v. Federal Election Commission, the Court ruled that political parties can spend as much money as they want in support of candidates. Personally, I wish there were spending caps on all campaigns. I might even support publicly funded campaigns only. However, I also believe that spending money to support political speech is protected by the First Amendment. In other words, I don’t have to like the ruling to believe it is the correct one under the Constitution.
I think part of the problem is that people confuse liberal versus conservative beliefs with what is really a debate between originalist and living constitutionalist interpretations of our Constitution. While these two divisions often overlap, they are not always the same. Traditionally, there are three primary approaches to constitutional interpretation: originalism, textualism, and the living Constitution.
Originalism is the belief that the Constitution should be interpreted according to its original public meaning when it was written. Justices who follow this approach try to understand what the authors of the Constitution and its amendments intended. They believe that changing the meaning of the Constitution should happen only through the amendment process, not through the courts.
Textualism focuses on the actual words of the Constitution. Rather than looking primarily at the intentions of our Founders or changing social values, textualist judges interpret the Constitution based on the ordinary meaning of its language. They believe the text itself provides the best guide for deciding cases.
Living constitutionalism is the idea that the Constitution is a living document that should adapt as society changes. Justices who follow this approach believe that the Constitution’s broad principles should be applied to modern issues that our Founders could not have anticipated, such as the internet or emerging technologies.
The reason it is easy to confuse judicial interpretation with political ideology is that the six conservative justices generally tend to be originalists or textualists, although Chief Justice Roberts often gives greater weight to precedent than the others. Meanwhile, the three liberal justices tend to follow the living constitutionalist approach, particularly Justice Jackson.
It just so happens that originalist and textualist interpretations often lead to outcomes that align with conservative beliefs, but not always. Whether you agree with their interpretation or not, when three conservative justices ruled in favor of birthright citizenship, it was not because they suddenly became liberals. Rather, they believed that was what the authors of the amendment intended. While I may disagree with their interpretation, I respect that they followed what they believed the Constitution required instead of simply ruling the way conservatives expected them to rule.
The problem, as I see it, is not that conservative justices sometimes side with the liberal justices; that should happen if they are following their interpretation of the law. Rather, it is that liberal justices seem far less likely to reach the same conclusions as the conservative bloc. I believe that reflects the difference between originalism and living constitutionalism. Originalists have an external standard to which they attempt to remain faithful, while living constitutionalists can change the Constitutional meaning to fit an agenda.
Finally, we should be careful the next time we praise a justice from the other side for “crossing over” while criticizing a justice from our own side for doing the same. It is the justices who, even when the law may point in another direction, never rule against their own ideological preferences, whose judicial philosophy deserves the closest scrutiny.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
