I did not even hear of this story about the Lincoln Bedroom until I read Mark Kleiman’s blog, but I think Mark deserves praise for defending George Bush, a politician he loathes, against a charge of unethical conduct that Mark thinks is unfounded. Kudos to Mark for this classy post. He could have just remained silent.
In this spirit, I report that I was interviewed Thursday morning on KNX-AM radio in LA about Justice Ginsburg’s alleged “Ties to Activist Group” reported in Thursday’s LA Times (free registration required for link)–a story apparently first stimulated by the blog Patterico’s Pontifications. In case you have not read it, here is the charge which was initially brought to my attention by KNX:
Supreme Court Justice Ruth Bader Ginsburg has lent her name and presence to a lecture series cosponsored by the liberal NOW Legal Defense and Education Fund, an advocacy group that often argues before the high court in support of women’s rights that the justice embraces.
In January, Ginsburg gave opening remarks for the fourth installment in the Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Two weeks earlier, she had voted in a medical screening case and taken the side promoted by the legal defense fund in its friend-of-the-court brief.
The liberal Ginsburg’s involvement with the legal activist group, and recent outside activities by a conservative colleague, Justice Antonin Scalia, have touched off a debate over what kinds of extrajudicial appearances and contacts are appropriate for Supreme Court justices.
My take on this seemed to take the anchor, Chris Stanley, by surprise: I said I thought the charge was preposterous.
Supreme Court justices are not going to change the way they rule because they accept an invitation to speak in front of a group, even an “activist” group with which they tend to agree (and even if the lecture series is named after them). Supreme Court justices are not like the Oracles in Minority Report who must be segregated from the population in general, or from people with opinions in particular, and guarded by eunuchs. They get invited to speak by groups for a variety of motives. Sometimes the groups want to hear from justices who they admire and with whom they agree. Other groups want to hear from a justice who challenges their views. Still others just want to hear a Supreme Court justice, though in my experience they tend to be rather boring. By the same token justices get invited to dinner parties. Justices play poker or golf with their friends. Justices go to the movies. They read the paper or magazines. Justice are people.
I think that the recent flaps over justices Ginsburg’s and Scalia’s outside contacts is also related to what Larry Solum has dubbed the “downward spiral” over judicial appointments. Where the Constitution is not viewed as having a meaning independent of the preferences of those doing the interpreting–a view that has been very popular among intellectuals for a very long time–we must insist that only judges with whom we agree get on the bench. And while on the bench their views can neither be corrupted nor reinforced by the opinions of outsiders, and we should strive to get those who somehow slipped through the confirmation process to recuse themselves from cases we care about. Of course, we really only care about all this when it concerns justices or judges with whom we disagree.
This view of judging is a self-fulfilling prophesy. Insisting that all constitutional interpretation is or must be based solely a matter of choice concerning “right results” is conducive to judges acting as if this is true, which then makes it true. But it need not be true. Or more accurately, though some judicial discretion in applying the meaning of the Constitution to particular cases is inevitable, it need not be true that this discretion cannot be cabined by an independent meaning of a written constitution. The only genuine solution to the downward spiral is to restore the original public meaning of the Constitution as a source of meaning that is independent of judicial (and legislative and presidential) preferences–even if this meaning does not dictate unique results in every case. In other words, the meaning of an enacted constitution must remain the same until it is properly changed.
To appreciate this, consider the following thought experiment. Imagine judicial nominee A who thinks (1) the 16th Amendment authorizing an income tax is highly unjust but (2) its original meaning clearly makes the income tax constitutional. Even if you disagree strongly with this nominee about (2) but you also truly believe that she has the “judicial virtue”of faithfully putting the original meaning of the Constitution ahead of her view of justice, she can safely be confirmed notwithstanding her strongly-held opinion on the justice of the income tax. Now consider judicial nominee B who thinks (1) the 16th Amendment authorizing an income tax is highly unjust but (2) its original meaning can be ignored or explained away (like the right to keep and bear arms has been) and the income tax can, in the interests of justice, be held to be an unconstitutional “taking.” All who oppose this result for whatever reason must now vehemently oppose this nominee.
I do not claim that this example is realistic. I posit it to starkly illustrate the connection between our theories of constitutional interpretation and the downward spiral affecting judicial nominations (as well as the newfound fetish that justices not associate with highly opinionated “activist” groups). What distinguishes between nominees A and B is not their policy preferences but the method of constitutional interpretation to which they are sincerely committed.
Let me offer this maxim: Any method of constitutional interpretation that is malleable enough to lead to ALL the important results you care about–what Sandy Levinson calls “happy endings”–can be used by your political opponents to reach all the important results that THEY care about. Which then reduces all of constitutional law to who get elevated to the bench. This the situation in which we now find ourselves. The only way out of this morass is to reestablish methods of interpreting the Constitution that acknowledge that the text had a public meaning when it was adopted that may not be changed by the very government officials it was supposed to subject to its higher law.
Note bene: I know the subject of constitutional interpretation in general–and originalism in particular–is very complicated. I wrote Restoring the Lost Constitution to address these complex issues at greater length than they can be analyzed in a blog post. Any reader who is genuinesly concerned about the nuances should check out the longer analysis of originalist interpretation and its limits to be found there.
UPDATE: Patterico, who broke the Ginsburg story, blogged to express general agreement with my reaction and adds a thought with which I agree:
Although I wouldn’t use the word “preposterous,” I tend to agree with Barnett. Justices shouldn’t have to lead cloistered lives, as I have stated in virtually every post I have written on the issue. I have seen Justice Scalia (and other judges
) speak, and have benefitted from the experience. My point has been simply that a newspaper shouldn’t pick on only the most conservative Justice, while giving a pass to the liberal ones.
UPDATE II: Some agreement with the above maxim on the American Constitution Society blog.
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