Jim Stillman
Nevar
The replacement of a Supreme Court Justice
May 8th 2009 19:25
Justice Souter’s decision to retire at the end of the current Supreme Court term has created an opportunity for President Obama to nominate a successor member of the Court. It has also given many far-right commentators a chance to spew venom in anticipation of Mr. Obama’s choice.
The President said that he looks for diversity on the Court, life experience and not necessarily that of a Federal appellate Judge, and a Justice who would understand the needs of the people.
Rush Limbaugh thoughtfully translated for the President so that his Ditto-heads would see what the President really meant:
It is easy to dismiss Rush and his friends for the bigots and irresponsible fools that they are. Many conservatives, however, are focused on a false dichotomy of an “activist judge” and one who is a “strict constructionist”, the latter believing that the “original intent” of the authors of the Constitution should always prevail and courts ought not to go beyond the letter of the document.
In reality, nearly everyone acknowledges that the Constitution’s words often need expansion and interpretation and that is a judicial function.
For example, the First Amendment states that Congress could pass no law limiting free speech and free press. Justice Black took the stand that “no law” means “no law”. Yet even the most conservative or Libertarian would decry pornography distributed to and aimed at children.
Many conservatives state that the Constitution does not create a right of privacy, from which comes rejection of laws prohibiting restricting the sale of contraceptives, interfaith and interracial marriage and, perhaps same-sex marriage. The Court has discerned that “right” from what some Justices called the penumbra of the document, a right that can be translated as the “right to be left alone”. Is that a sign of a Justice who is “activist”, a jurist who disdains the words of the document, who is the antithesis of a “strict constructionist?
Perhaps so, but I would submit that the issue is not one of strict or relaxed construction; it is the result that is being considered. If one limits the Constitution to permit only those powers and authorities that were prevalent in the late 18th century, the results are totally unacceptable.
For an example, there is a generally accepted rule of statutory construction that that, where both general and specific phrases appear to address a matter, the Legislature intended to have the specific phrase control. For example, Article I, Section 8, of the Constitution grants the general power given to Congress to “provide for the common defense”; specific authority is given to “raise and support Armies”, “to provide and maintain a navy” and to provide rules for the land and naval Forces. A “strict constructionist” might hold that there is no authority for a United States Air Force!
A Constitution is a living document that expands and contracts as society changes and develops. In the 18th century, no one considered radio, television or the Internet, civil rights had not evolved, and parking meters would have been the subject of laughter. The right to purchase contraceptives or the policy of allowing consensual conduct in one’s home without police interference or even the rejection of child labor laws, all of these flow from the activist Courts. None of those now accepted rights can be explicit in the words of the Constitution.
In the 2005 case Roper v Simmons, the Court addressed the issue of the sentencing of a juvenile to death. In holding that such a sentence was unconstitutional, Justice Kennedy wrote of the Eighth Amendment’s prohibition against “cruel and unusual punishment” and that the concept had changed in the past 200 years.
The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual.
I would submit that to focus on the “original intent – evolving standards” dichotomy would be a mistake. President Obama needs to nominate the best conceivable person to the Court, a man or woman who would be a left-of-center counter to Justices Roberts, Scalia, Thomas and Alito. Notwithstanding Rush Limbaugh’s “helpful translation” the actual remarks of the President are clear:
The Devil is, as we all know, “in the details”. In posts to follow, I will suggest specific criteria and candidates for nomination. Considering Justice Souter’s philosophy, I wouldn’t expect too much of a change in the Court’s direction at this point but a moderating voice would certainly be welcome.
The President said that he looks for diversity on the Court, life experience and not necessarily that of a Federal appellate Judge, and a Justice who would understand the needs of the people.
Rush Limbaugh thoughtfully translated for the President so that his Ditto-heads would see what the President really meant:
“We have to get an illegal alien on the Supreme Court….we need a teenage single mother, who's gay, is a lesbian, who's dirt poor, African-American, and disabled"
It is easy to dismiss Rush and his friends for the bigots and irresponsible fools that they are. Many conservatives, however, are focused on a false dichotomy of an “activist judge” and one who is a “strict constructionist”, the latter believing that the “original intent” of the authors of the Constitution should always prevail and courts ought not to go beyond the letter of the document.
In reality, nearly everyone acknowledges that the Constitution’s words often need expansion and interpretation and that is a judicial function.
For example, the First Amendment states that Congress could pass no law limiting free speech and free press. Justice Black took the stand that “no law” means “no law”. Yet even the most conservative or Libertarian would decry pornography distributed to and aimed at children.
Many conservatives state that the Constitution does not create a right of privacy, from which comes rejection of laws prohibiting restricting the sale of contraceptives, interfaith and interracial marriage and, perhaps same-sex marriage. The Court has discerned that “right” from what some Justices called the penumbra of the document, a right that can be translated as the “right to be left alone”. Is that a sign of a Justice who is “activist”, a jurist who disdains the words of the document, who is the antithesis of a “strict constructionist?
Perhaps so, but I would submit that the issue is not one of strict or relaxed construction; it is the result that is being considered. If one limits the Constitution to permit only those powers and authorities that were prevalent in the late 18th century, the results are totally unacceptable.
For an example, there is a generally accepted rule of statutory construction that that, where both general and specific phrases appear to address a matter, the Legislature intended to have the specific phrase control. For example, Article I, Section 8, of the Constitution grants the general power given to Congress to “provide for the common defense”; specific authority is given to “raise and support Armies”, “to provide and maintain a navy” and to provide rules for the land and naval Forces. A “strict constructionist” might hold that there is no authority for a United States Air Force!
A Constitution is a living document that expands and contracts as society changes and develops. In the 18th century, no one considered radio, television or the Internet, civil rights had not evolved, and parking meters would have been the subject of laughter. The right to purchase contraceptives or the policy of allowing consensual conduct in one’s home without police interference or even the rejection of child labor laws, all of these flow from the activist Courts. None of those now accepted rights can be explicit in the words of the Constitution.
In the 2005 case Roper v Simmons, the Court addressed the issue of the sentencing of a juvenile to death. In holding that such a sentence was unconstitutional, Justice Kennedy wrote of the Eighth Amendment’s prohibition against “cruel and unusual punishment” and that the concept had changed in the past 200 years.
The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual.
I would submit that to focus on the “original intent – evolving standards” dichotomy would be a mistake. President Obama needs to nominate the best conceivable person to the Court, a man or woman who would be a left-of-center counter to Justices Roberts, Scalia, Thomas and Alito. Notwithstanding Rush Limbaugh’s “helpful translation” the actual remarks of the President are clear:
” I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
“I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.”
“I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.”
The Devil is, as we all know, “in the details”. In posts to follow, I will suggest specific criteria and candidates for nomination. Considering Justice Souter’s philosophy, I wouldn’t expect too much of a change in the Court’s direction at this point but a moderating voice would certainly be welcome.
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