United States Supreme Court Justice Antonin Scalia recently gave the keynote address for a two-day conference on freedom and the rule of law at Utah State University. Scalia’s most interesting point was the connection between judicial activism and political attacks. This is important because all too often people who see the Constitution as an evolving or living document are the very same ones who decry political attempts to influence the judiciary.
For example, the July/Aug. 2005 edition of the Utah Bar Journal contained an article by John J. Flynn, a U law professor emeritus, titled “”Making Law’ and “Finding Facts’ Unavoidable Duties of an Independent Judiciary.” In his article, Flynn makes an impassioned defense of an independent judiciary. But at the same time he speaks of “evolving meanings” and “evolving understandings of reality,” defending Justice Anthony M. Kennedy’s touchy-feely use of international trends as justification for the execution of murderers under 18 which violates the Eighth and Fourteenth Amendment in Roper v. Simmons.
There are two problems with the concept that the Constitution is a living document as opposed to one with a fixed meaning.
First, it undercuts the predictability that is central to the concept of the rule of law and the freedom that flows from it. When, for example, drivers see a sign reading the speed limit is 75 mph, they know not only that they can be ticketed for going 76 and above, but also that they are safe from speeding tickets when they are driving at 75 or under.
When limits set by the law8212; by the Constitution8212;are not the document’s fixed words but instead have changed concepts, such as “the evolving standards of decency that mark the progress of a maturing society,” both the people and the legislative institutions that represent them are hindered in knowing what is permissible.
Second, under a living rather than fixed Constitution, the judiciary often winds up making value judgments on controversial political questions instead of the people through their elected legislatures. Not only are these judges, as Scalia said, no more qualified to make moral judgments than “Joe Six-Pack,” but such judgments lack legitimacy.
In a democracy, all legitimacy ultimately flows from the people. All federal and many state judges are not elected, so they don’t have the same legitimacy to make moral judgments that legislatures do. Rather, judges derive their democratic legitimacy from following the constitutions and laws the people have carefully considered and promulgated through their elected representatives.
This is not to say that judicial independence is not important, because it is. Judges should be independent to decide cases free from the interference of officers from either the executive or legislative branches of government. They should also be free from the influence of popular passions specific cases might excite. Such independence is crucial to the rule of law and our democracy. But this independence should only be used to follow the law and not make it.
People get outraged, however, when judges use their independence to stray from their legitimate role. Kennedy’s reasoning noted Roper v. Simmons provoked a huge outcry. The Massachusetts Supreme Court provoked an even bigger outcry in Goodridge v. Department of Public Health, where they unilaterally redefined the institution of marriage. The proper way to change the law in such cases is not through the courts but through the legislative branch. This should not be hard to do if it is truly the case, as Flynn would say, “understandings of reality had evolved.”
When people have been deprived of their voice in deciding such controversial moral questions by a non-elected group of pseudo-experts, it is only natural that they should like to make their own preferences felt by engineering the selection of new pseudo-experts of their own philosophical bent. While this might be satisfactory to a given side in the short run, it hinders the judicial independence that is important to all of us in the long run.
Steve Warrick