Friday Op-ed in the Pittsburgh Post-Gazette Concerning Judge Gorsuch and Interpretation

4/2/2017--Here is the PG op-ed.
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Withholding judgment
In interpreting the Constitution, Supreme Court justices should consider their own morals and values
March 31, 2017 12:00 AM
By Bruce Ledewitz

Neil Gorsuch made the point several times in his confirmation hearing for U.S. Supreme Court that judges should rule on the law as it is, not as the law ought to be. This means that a judge’s morals and values should be irrelevant to his rulings. But, despite how reasonable this sounds, there are three problems with this approach — it is potentially immoral, dishonest and anti-democratic.

Americans are unaware of the dark history of this way of thinking about law, which is called legal positivism. When the Nazis assumed power in Germany, they pursued their policies, at first, primarily through law. But the Nazis had to persuade German judges to enforce laws that the judges would find morally repugnant. So the Nazis coined a slogan to persuade judges to apply the law as written — Gesetz als Gesetz, law as law.

Sadly, the Nazi propaganda campaign succeeded and the German legal system meekly surrendered its soul. This is what can happen when you divorce law from morality.

In America, legal positivism translates into a theory of constitutional interpretation called originalism or textualism. This theory holds that the great moral principles of the Constitution — anti-cruelty, equality, fairness, inherent rights — should not be applied as we now understand them, but only as the framers understood them. This approach leads to the same quandary that it did for the German judges. Undoubtedly, originalist judges usually do what is right, but they have to deny that they are doing so.

This is the reason why Judge Gorsuch’s role model, Justice Antonin Scalia, could never adequately explain why Brown v. Board of Education, the case that ended American apartheid, was correctly decided. He knew of the strong historical evidence supporting the lawfulness of racial segregation. The original understanding of equal protection also did not prohibit laws against interracial marriage. The Constitution as written even permitted Congress to segregate the D.C. Public Schools. Fortunately, in all these cases, the Supreme Court rejected history and ruled in favor of racial justice.

It is not only in the realm of racial equality that judges have ignored history in the name of justice. The Constitution has been interpreted to protect women, despite the chauvinism of the 19th century. It has protected the rights of parents and the right of reproduction. It has protected the right to burn the American flag and the right to advertise — all rulings without historical justification.

The other danger of historical interpretation is that judges may only pretend to employ it. Such judges may amass historical evidence only for show, when they have secretly already decided a case. Or worse, they may be fooling themselves, imagining that they are looking at history in a neutral way, but actually misreading the evidence to suit their preferences. Their values will be important, but we might not find out what those values are, until it is too late.

But the most serious danger is that originalism can serve a partisan judicial agenda. The framers of the Constitution might have considered much of what government does today to be unconstitutional. Of course, if the framers had lived to see the power of global corporations and the environmental threat to the planet, they probably would have agreed with these extensions of government power. But they did not. For originalists, only the original view of the framers is relevant.

So, one day a group of originalist justices on the Supreme Court may just announce that the New Deal is unconstitutional. Not just the regulation of business, but Social Security and also federal deposit insurance, since Congress lacks authority to charter the Federal Reserve. All the while, these justices will claim that they are only following the law.

In spite of his respect for history, our greatest conservative jurist, John Marshall Harlan II, did not try to rule in this value-neutral way. He conceptualized the Supreme Court as engaging in a dialogue with the American people. The Supreme Court would rule, but the American people would ultimately decide. This led Justice Harlan to a fuller democratic spirit than someone like Justice Scalia, who famously wrote that he wanted the American people to leave the Supreme Court alone.

Values usually matter for judges, and that is a good thing. The attempt to claim otherwise demeans law and hides its full human complexity. It is better for all of us when judges express their commitments openly, so that we can see them and debate them in the full light of democratic engagement.

Bruce Ledewitz is professor of law at Duquesne University School of Law (ledewitz@duq.edu).