Refusing to Apply the Law: A Critique of Conservative Jurisprudence
A friend recently shared a comment on social media to the effect that conservative justices apply the law, while liberal ones make it up. This is a common view, which I once bought in to. I no longer think this is the case at all, and I would like to explore a particular example to show why. The constitution makes sweeping declarations about our political values, which were not then and are not now fully realized. Should the Supreme Court enforce them or not? If these provisions are not judiciable, then they are not meaningfully the law of the land. Like the Declaration of Independence, the Constitution would be reduced to symbolic value. But if they are judiciable, then the Court must have the authority to enact the major social changes they require.
Consider the ideal of equality, which since the ratification of the 14th Amendment in 1868 has been constitutionally guaranteed in the form of “equal protection of the laws.” The implications of this guarantee are not immediately obvious, and it is reasonable to expect some disagreement. It might even be possible to learn through experience that one arrangement initially thought compatible with equal protection, like racial segregation, turns out not to be.
Here, representing a conservative interpretation, are the words of the late Justice Antonin Scalia:
Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot but permitted distinctions on the basis not only of age but of property and sex.*
He goes on to fret that today’s advocates of a “living constitution” would have tried to extend the franchise through the courts, without actually going through the amendment process. This would be undemocratic on his view, since judges are appointed.
But saying that women must receive their basic political rights at the permission of male voters, whether or not they are entailed by the constitution, is outrageous and condescending. Asking whether those who drafted and voted for the 14th Amendment believed that voting rights are necessary for equal protection is a completely different question than asking whether in fact voting rights are necessary for equal protection. Only one of these questions is relevant to the law. And if a plaintiff could have demonstrated in court that voting rights are necessary for equal protection (which should be obvious by now), then judgment should have been made accordingly. Whatever various views the drafters had on this question are not included in the text of the amendment as ratified, although Scalia pretends they are. It would have been more appropriate, not less, for the vote to have been won in court.
Achieving greater justice and equality through legislative change is a good thing, and we should keep seeking to do that. But when it is a matter of the basic boundaries of a just society and of principles already codified in the constitution, then remedy should be available through the courts. And the conservative, Scalia school of jurisprudence is apt to simply refuse to decide the questions that matter most, for the very reason that they matter most. Justice may not be available from a conservative court, not because it isn’t required by the law, but simply because it would rock the boat too much.
* from A Matter of Interpretation: Federal Courts and the Law: An Essay (Princeton, 1997).
** My argument is indebted to Ronald Dworkin’s critique of Scalia, included in the same volume.