Friday, October 15, 2010

That Living Constitution

I had a discussion earlier in the week with a liberal (he would prefer me to say "progressive") friend of mine who was astonished at my declaration that the left was responsible for judicial activism in the Supreme Court. Surely, he said, the left would merely say the same thing about the right. This was a phenomenon that was universal, and that both sides practiced in an effort to subvert the other, nothing but further evidence that the Court has become politicized.

He's right: the left would say the same thing. But they'd be wrong. Judicial activism - by which I mean judges writing decisions using their own preferences rather than their interpretation of the Constitution - stems from Progressive impatience with Constitutional restraint. We can go over the whole history of this another time, but a Corner post by John Derbyshire really gets to the root of it.

A reader writes to Derb:

let me relate the story to you of Justice Ruth Bader Ginsburg’s visit to my alma mater. (For the record, I was not in attendance at her lecture, but I heard the same story from multiple trusted colleagues). A student asked Justice Ginsburg about the use of the "intermediate scrutiny" test for equal protection review. Intermediate scrutiny is the standard by which courts review challenges to government classifications based on gender. (The court uses "rational basis" review for what it calls "non-suspect" classifications, such as wealth, which is a relatively easy test for the government to pass, and a "strict scrutiny" test for "suspect classifications," such as race, which is a much harder standard for the government to clear). The basis of the question was Justice Ginsburg’s majority opinion in US v. Virginia (the case that forced Virginia Military Institute to become a co-ed institution), in which she applied a version of intermediate scrutiny that had never been applied before and which seemed to many observers much more like a strict scrutiny review (in other words, she held the government to a higher standard than precedent seemed to dictate). The student wanted to know how Justice Ginsburg arrived at the use of this "revised" standard.

Her answer astonishes me to this day. She told those assembled that the justices do not use the analytical framework to reach the results in a given case, but that they decide the result first and then fit the opinion into the existing framework.

(Emphasis mine.)

This is a stunning admission. I do not believe you would hear anything like it from any originalist on the Court.

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