Adam Goldenberg is a Kirby-Simon Fellow at Yale Law School. Follow him on Twitter at @adamgoldenberg.
On September 16, 1988, U.S. Supreme Court Justice Antonin Scalia delivered the William Howard Taft Constitutional Law Lecture at the University of Cincinnati.
“It is often exceedingly difficult to plumb the original understanding of an ancient text,” he declared. “It requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not.”
By these standards, the process by which Chief Justice John Roberts decided to uphold the Obama administration’s health care law was flawed, indeed. Roberts ruled that the individual mandate—which requires Americans to carry health insurance, or pay a penalty—was constitutional under Congress’ taxing power, but only after a change of heart; as reported last week by CBS’ Jan Crawford, his switch in time coincided with a surge of punditry suggesting that a decision to strike down the mandate could be catastrophic for the Court’s credibility—and for the Chief Justice’s credibility, in particular.
That the Chief was convinced by commentary must enrage his conservative colleagues. For Justice Scalia, after all, the judges who are tasked with interpreting the “ancient text” of the U.S. Constitution can pay no heed to pundits, politicians, or even the public—all sources of, in his words, “knowledge that we have which an earlier age did not.” The Court’s purity depends on its isolation; its members should be allergic to zeitgeist.
Justice Scalia, suffice to say, does not tweet.
But do his clerks? Do Justice Clarence Thomas’ assistants check their Facebook accounts, even as their boss refuses even to read newspaper coverage of issues before the Court? Supreme Court staffers participate directly or indirectly in drafting the Justices’ opinions, and it seems unlikely that they abandon the internet altogether during their year of service in D.C. In an era of over-sharing, it is too precious to pretend that the people who settle legal disputes can be totally impervious to others’ opinions.
And yet, to admit as much is to abandon one of the cardinal fictions of the American judiciary: that judges are somehow splendidly isolated—islands of law in a sea of politics, and so on. They are not. Senate confirmations see to that. Potter Stewart on school desegregation; Robert Bork on the right to privacy; Harriet Miers on her own ideological impurity—those named to America’s highest court have, for decades, been made to lift their robes before the people’s representatives, so that their every decision might be scrutinized years in advance. It is telling that conservatives now criticize Chief Justice Roberts for yielding to pressure not to vote the party line; if they were truly committed to a non-partisan judiciary, it would have been a scandal had he blithely done the opposite.
On today’s American bench, predictability is a virtue, and flexibility a vice. The U.S. Constitution does not change, after all, so how can one’s reading of it? It is no small marvel that self-described originalists even entertain oral arguments; if the judge’s role is, in Justice Scalia’s words, “to plumb the original understanding of an ancient text,” then surely historical documents are sufficient. To yield to amateur interpretations—by Congress, let alone by bloggers and tweeters—is the ultimate abdication of judicial responsibility. On this count, Chief Justice Roberts is guilty.
Just one problem: law follows politics all the time. The U.S. Supreme Court has never been deaf to outside arguments.
Its 1973 plurality decision in Frontiero v. Richardson, which raised the constitutional bar for sex discrimination, was handed down amid a high-profile, ultimately unsuccessful campaign to amend the Constitution along the same lines.
In 2008, in District of Columbia v. Heller, the Court struck down the national capital’s handgun ban as a violation of the Constitution’s Second Amendment. Justice Scalia’s own decision for the majority relied on the divisibility of the so-called “operative” clause from the “prefatory” clause of the Amendment—the bits about “the right to bear arms” and “a well-organized militia,” respectively. That operative-prefatory distinction first appeared in the academic literature in a 1996 paper by Nelson Lund, a law professor at George Mason University, whose chair was endowed by—wait for it—the National Rifle Association.
Then there is last week’s Obamacare decision. As has been well documented, the distinction between Congressional regulation of “activity” and “inactivity”—which is at the core of the Commerce Clause analysis in both Chief Justice Roberts’ opinion and the conservative wing’s joint dissent—is largely the invention of Randy Barnett, a law professor at Georgetown. It was propelled to national prominence by a wave of opinion pieces, Senate floor speeches, and a December 2009 memo from the Conservative Action Project, an influential advocacy group chaired by Edwin Meese, who once served as Attorney General to President Ronald Reagan.
And how can we forget broccoli, which became a metaphor for Congressional overreach after Terry Jeffrey, a conservative commentator and former aide to Pat Buchanan, asked, “can Obama and Congress order you to buy broccoli?” in an October 2009 column attacking the Affordable Care Act. It appears in the Supreme Court’s Obamacare decision 12 times.
Given that the Court has never truly walled itself away from the world, the Chief Justice’s sensitivity to scrutiny hardly seems surprising. True, he was swayed not by a legal argument, but by a political one—by his concern for the Court’s credibility, not a preoccupation with the Constitution. But the factors he weighed in making his decision must be evaluated apart from his choice of reading material; there is nothing new about Justices’ looking beyond the Constitution and legal precedents in making their decisions. And if that means following the latest buzz—whether in the Times or on Twitter—so be it.
America’s court-watchers can take heart in the Canadian example; our judges have been reading the news for years. In 1929, the Judicial Committee of the Privy Council, then Canada’s highest court of appeal, established a doctrine of progressive interpretation that has held ever since. “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits,” wrote Lord Sarkey in Edwards v. Canada (Attorney General).
Justice Scalia would be horrified. Far from insisting on adhering to an original—some would say anachronistic—understanding of our constitutional provisions, Canadian courts have often done the opposite. In the 1995 case of Egan v. Canada, for example, the Supreme Court held that sexual orientation is an analogous ground of discrimination, prohibited by the Constitution—even though Parliament had excluded it from the Charter of Rights and Freedoms some 13 years before.
Tell this story to American conservatives, and they are shocked. But Canadians are generally at peace with our judges’ approach; we expect the members of our Supreme Court to pay some attention to the changing world around them—namely, us—when they do their work. And despite Justice Scalia’s admonitions, the sky has yet to fall.
In the U.S., conservatives cling to the Constitution to delay progress. In Canada, conservatives do the opposite, for the same reason. Recall the slogan sported by some delegates at the Conservative Party’s 2005 convention: “It’s the stupid Charter.” While Americans venerate their Constitution on 4th of July, Canada’s Conservatives continue to downplay our Charter, even in its 30th anniversary year—in his Canada Day statement, the Prime Minister mentioned the War of 1812 three times, and the Constitution not at all. Perhaps in law, as in botany, a living tree can more easily be ignored than a dead one.
There was a time, a few decades ago, when American liberals still dared to speak about a “living Constitution.” Those days are done; by the end of the Reagan administration, originalism was ascendant, and the organism was extinct—a political victory, to be sure, but one whose progeny have been legal.
And yet, with its Obamacare decision, the U.S. Supreme Court has made its debut into the blogosphere. Justice Ruth Bader Ginsburg cited the Washington Post’s WonkBlog in her concurring opinion. Chief Justice Roberts went with the conservative movement in his interpretation of the Commerce Clause, and then with his political instincts in his decision to uphold the individual mandate under the taxing power. And Justice Scalia himself betrayed his attentiveness to base politics during his oral argument on whether the mandate could be severed from the rest of the health care law: “You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate,” he said—an insight not easily located in the “ancient text” of the Constitution itself.
For some, the extent of the American Court’s savvy will be cause for alarm—if the Justices are sensitive to shifts in social sentiment, might they face the same sort of online slacktivism that besets the elected branches of government? Yes, perhaps they will be, though the Canadian experience suggests otherwise. Then again, our judges have never been as partisan as their U.S. peers.
Still, as American opponents of sex discrimination, gun control, and the individual mandate can all attest, the medium may have changed, but the message has not: no Court has ever been an island, and the Roberts Court least of all.