What is remarkable about America is not our Constitution or Bill of Rights — some of the most illiberal of countries have had great paper protections — but the very structure of divided government contained within the Constitution. This division of power was intended to preserve individual liberty by requiring each branch of government to work in concert before freedom could be abridged.
With the retirement of Justice Anthony Kennedy, so often a swing vote on the Supreme Court, the Left has begun to argue that a Trump appointment will swing the “balance” of the Supreme Court to the right. But all of this talk about a “balanced” court obscures the important point: We need to restore the Constitution’s checks and balances on the judiciary.
The argument about balance implies that the terms conservative and liberal apply to judges just like they do to political parties, even though those words have very different meanings and application when it comes to judicial philosophy.
Anyone who thinks the Supreme Court’s role should be what the Founders intended (interpreting law, not making it) needs to understand this misleading misuse of the term “balance,” refuse the bait, and return discussion to the essentials that are central to the proper functioning of the third branch of government.
Remember the movie "Point Break"? In it, a gang of surfer thugs took over the best stretch of public beach and intimidated anyone else who tried to use it, turning public property into their own private playground.
At one level, the Left’s desire to “own” the court and its outcomes is similarly understandable. It is part of the dark side of our nature to grasp advantage wherever we can find it. When the Left isn't able to win legislatively, the temptation to use the courts to advance their agenda is strong.
But what if the surfers claimed their seizure of that stretch of prime beach created “balance” with everyone else’s use of the rest of the beach? They would still be wrong. To argue about “balance” obscures the essential starting premise: in this instance, that all of a public beach is open to everyone.
So too with the Supreme Court.
Under our Constitution, we have a system of checks and balances, which works by dividing the powers of the federal government among three branches: legislative, executive, and judicial.
The first question for any judicial nominee therefore is not one of political conservative/liberal “balance,” but their adherence to one fundamental predicate: the job description of a federal judge. Our Constitution provides that judges are to interpret and apply the law, regardless of their own preferences, and leave the making of laws to the people and their elected representatives. Does a judicial nominee subscribe to that view?
The judicial philosophy of constitutionalists or originalists (that is, “conservative” justices) helps to hold them to their limited constitutional role. Originalism and textualism steer their discretion; judges who adhere to these theories are supposed to look only to text and original meaning, not to foreign law or their own values. Even if a textualist judge disagrees with a law, she knows that her job is limited to interpreting the law as written by Congress, and that it is up to the people and Congress, not the Supreme Court, to change the law. Per a 2017 Marist Poll, 80 percent of Americans agree with that view.
Since Justice Antonin Scalia made originalism mainstream, judges of all stripes often begin with the text and original meaning of the Constitution and federal statutes. The question is what happens next.
Judges who adhere to the “living constitution” judicial philosophy are unconstrained by the Constitution’s starting premise. Because they believe the Constitution changes, they are free not only to interpret but also make new law. In short, such a judge believes he can divine new interpretations of the Constitution, without waiting for the democratic process to work legislatively.
Living constitutionalists also routinely consult foreign law and their own subjective value judgment. They believe the Supreme Court may strike down laws that are unfair, even if the laws have long passed constitutional muster. When a statute is at issue, these judges often look to the broad purpose of a law to revise the actual words that Congress enacted.
Why does this matter?
If you hired auditors, a balance of talents and viewpoints on complicated financial transaction questions would be welcome — but having even one (never mind a “balance” of the partners) believe they could amend the accounting rules (a starting premise) as they saw fit would be unacceptable.
If you’re playing baseball, having an umpire who rather than calling balls and strikes changes the strike zone midgame based on what he thinks would lead to a fair outcome would not achieve “balance,” but to that umpire being fired.
Sitting Supreme Court justices are life tenured. They are supposed to be above politics precisely because they are not supposed to be making law. If we want a court that fulfills its constitutional role, it is time to recognize that its authority starts with constitutional checks, balances, and limitations. To restore respect for the court, we should insist that all nominees, first and foremost, and regardless of whether their political views are more Left or Right, adhere to the constitutionally defined limitations that are the core premises of the job of a Supreme Court justice.
Erin Hawley is a legal fellow at Independent Women's Forum, an associate professor of law, and a former law clerk to Chief Justice John Roberts. Heather Higgins (@TheHRH) is CEO of Independent Women's Voice.