Some have suggested that the Republican Senate should take what they are terming “yes” for an answer when it comes to President Obama’s nomination of Chief Judge Merrick Garland. The president, this account goes, acted in a spirit of compromise by nominating a moderate, which was more than the Republicans could reasonably have hoped for. Whatever merit there might be to this account from a political perspective, given the stakes for the future of the Constitution and the Supreme Court, the Republicans are right to insist that Justice Antonin Scalia’s seat be left open during this election year.
The death of Justice Scalia left the court effectively balanced between two vastly different understandings of the nature of constitutional law and the role of the Supreme Court. While both sides honestly believe in good faith that their philosophy embodies “interpreting” law and not “making” it, the reality is that the justices appointed by Democratic presidents have an approach to constitutional (and statutory) interpretation that differs from that of conservative appointees. While judicial conservatives believe that the text, structure and original meaning of the Constitution bind today, Democratic appointees believe that fidelity to the Constitution means fidelity to its values, rather than to its concrete directions. Democratic appointees consistently interpret the Constitution to require results favored by social liberals, including many that would have been unimaginable when the relevant provision was actually enacted. No matter, those justices say, the values those Constitution-makers put in place are properly updated to meet the demands of modern times.
{mosads}That is the philosophy of the living Constitution, and it is that philosophy that has for decades made the Supreme Court the center of American social policy. To be sure, Republican-appointed justices have all too often fallen prey to the beguiling promise of a living Constitution. But every single Democratic-appointed justice for over 50 years has unabashedly been a proponent from the day he or she was appointed.
The debate about interpretive philosophy goes beyond the Constitution and extends into the interpretation of statutes, including those delegating regulatory authority to administrative agencies. Such cases typically have more impact on American life than most constitutional cases. Here the same interpretive divide exists: While Republican appointees believe that the court must adhere to statutory text, Democratic appointees believe that the court ought to implement a statute’s policies, even when the text dictates a different outcome.
Here’s an example: Two years ago, in the Utility Air v. EPA case, the Supreme Court rejected in part the Environmental Protection Agency’s effort to regulate greenhouse gas emissions — a program the agency estimated would cost almost $10 billion per year — because the agency had read the statutory term “100 to 250 tons” actually to mean “100,000 tons.” That seems like an easy case for concluding that Congress had tied the agency’s hands, and to be sure it was. But the vote was 5-4, with the four dissenting justices predictably being the four liberals. Those justices adopted a reading of the statute that passed over the challenge of its clear words, and concluded the agency’s reading properly implemented the statute’s purposes — or, in other words, its values. Among the judges on the lower court who wrote the opinion upholding the agency’s conclusion that 250 could mean 100,000? Judge Merrick Garland.
Those who object to the philosophy of the living Constitution, and to the notion that agencies are there to implement Congress’s purposes rather than its words, are right to oppose the appointment of any justice who would cement for a generation a 5-4 majority for that approach. And to be clear, those objections are not about Judge Garland, who has had a distinguished career and is by all accounts a person of great character. The stakes are about judicial philosophy.
When the future of the Supreme Court is at stake during an election year, Senate Republicans believe that the people’s views should determine where that balance will fall. Here they stand with Justice Scalia himself. Long ago, he lamented in his Planned Parenthood v. Casey dissent that the court, particularly nominations to it, had become politicized. He attributed that phenomenon to the reality that a Supreme Court that invokes a living constitution in fact will inevitably impose upon the people the court’s favored value judgments. The American people, Justice Scalia said, “are not fools,” and they “love democracy” — and they quite rightly believe that their value judgments are just as good as those of the justices.
Kelley, a professor at Notre Dame Law School, served as deputy counsel to former President George W. Bush.