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What I look for in a judge

On Behalf of | Oct 22, 2020 | Firm News |

We are about to get another supreme court justice.  Non-lawyers sometimes think that the personal political preferences of judges is what is most important in selecting them.  I say it is a useful way of understanding how a judge views society, but it does not necessarily tell us how a judge will rule on most questions.

I suspect that I agree with Judge Coney Barrett on some policies and disagree with her on others. What I look for in a judge is intellectual integrity— a commitment to apply principles honestly even if the judge would prefer a different outcome.  But I also look for some common sense to ensure that the decision is not outrageous or foolish.

As this short and clear piece by one of the country’s top constitutional scholars points out, originalism— the doctrine Coney Barrett espouses— does not logically lead to good decisions.

The author notes, for example, the obvious point that without a constitutional amendment, under an originalist theory, a woman could not be president because Madison and Hamilton never believed women could vote or hold office, and the Constitution uses the word “he”.

But we also see originalist supreme court justices abandoning their supposed doctrine when it suits them.  For instance, Justice Gorsuch— who claims to be an originalist— ruled in the Bostock case in June 2020 that Title VII of the Civil Rights Act protects Gay and Trans people from being fired due to their sexual orientation.  I, not surprisingly, support the policy of protecting these groups of people from being fired   But to argue, as Justice Gorsuch did, that Congress intended in 1964 the word “sex” to include protections for Gay and Trans people is simply ridiculous. Justice Gorsuch simply abandoned his originalism to engage in legal sophistry.

Another example of an originalist abandoning his principles is Justice Scalia’s opinion in Raich v Gonzales allowing the US Justice Department to prosecute a California farmer growing marijuana for his own personal use after California had legalized the practice.

Clearly the Commerce Clause in the US Constitution did not originally provide the national government with a police power.  That power was explicitly left to the states. Justice Scalia has previously written two other opinions limiting federal power under the Commerce Clause.   Justice Scalia abandoned his originalist doctrine to allow the prosecution.

Judging cannot be a blind adherence to an ideological belief how to interpret words. Those judges who claim to do so inevitably act as hypocrites in some cases. They abandon their principles when they feel strongly about an issue.

I prefer judges to be honest about how they weigh the meaning of words and the policy consequences to rule in cases rather than falsely claiming to always adhere to a principle.

Rigid adherence to an ideology was not how Madison and Hamilton or for that matter Chief Justice Marshall, the great first chief justice of the Supreme Court, imagined that judges would behave.  Those pundits who pretend that judges “should only interpret the law and not make the law” have a nasty habit of supporting decisions whose policy consequences they like when judges actually make the law.

There is nothing “conservative” in originalism.  It is a tool judges sometimes use honestly and other times hide behind to mask their actual choices.

Amy Coney Barrett’s Originalism Threatens Our Freedoms.

Read the article in the NY Times by Ewrin Chemerinsky, “The Philosophy That Makes Amy Coney Barrett So Dangerous“.