No Trust in Judges (the Continuing Debate)

The main point of Austin Rogers’ “Christians, Put Not Your Trust in Judges” is both spot-on and biblically accurate. Christians would do well to remember Psalm 146:3 which introduces the article and such verses as Psalm 20:07 “Some trust in chariots and some in horses, but we trust in the name of the Lord our God.” Some trust in the Constitution and some in Conservative Judges . . . you get the picture.

I believe the article makes two significant errors. In the interest of precision and accuracy, I address them at length below. In brief: first, the article operates with improper definitions of original meaning textualism and original intent as applied in the recent U.S. Supreme Court’s Bostock opinions. Second, the article improperly applies original meaning textualism and original intent as applied to whether Christians should advocate overturning Roe v. Wade.

1. Gorsuch and Alito both claim to apply original meaning textualism.

The majority and dissenting opinions in Bostock do not show conflict between original intent and original meaning. Also, textualism, in the conservative theory of legal interpretation, does not mean “define the words with today’s meaning” (as the article implies) but rather “define the words with the meaning at the time of the legislation’s enactment.” (Incidentally, Alito believes either approach would directly contradict the majority opinion. He accuses Gorsuch of blatant living constitution analysis.)

If you look at case law that applies these two frameworks, you will essentially be reading chapters out of history books. Original intent gets into the history of what was done and said during the drafting, discussion, argument, and passing of the legislation. The goal of the analysis is to try to figure out what the people who passed the law were trying to accomplish with the law – what did they intend for the law to do and mean?

Original meaning gets into the history of words. It doesn’t matter what was going on in the minds of the legislators. The law is what is written on paper applied to the society. A law can be badly written and do something different than what the legislators intend. A poorly written law should be applied (and overturned or replaced if necessary) as it is written, not as the legislators intend. What matters is: what did the actual words they used in their legislation actually mean at the time the law was passed?

The reason for the backwards look in “original meaning” analysis is that language evolves over time. A reasonable hypothetical could be developed showing how words or phrases in a statute could evolve so dramatically that the actual effect of a law would be nearly the opposite of its original meaning.

Original meaning and original intent are extremely similar because legislators try to draft their legislation in a way that causes the words (using then-current definitions) to accomplish their intentions.

The historical focus of the two methods is crucial as an antidote to the living constitution approach of so-called liberal or activist judges. Progressive activists are not democratic. In any event, legislators pass what they want without taking each question to the electorate as a whole. You can always find progressive activists who wish old laws said something different. It is hard to get a legislative body to change the law to be what the activist wants it to be. An activist judge who applies a living, breathing analysis to the constitution can “update the law” without needing the legislature to update the law. A handful of judges, such as five on the U.S. Supreme Court, can rewrite laws for all fifty states  The originalist and textualist jurists say that the law means now (at the time of the analysis) what it meant on day 1, and if you don’t like it, pass a new law. The proponents of the living constitution want the law to mean something different – they want the law “updated” to match what society and language have done in the interim.

In Bostock, Neither Gorsuch’s majority opinion nor Alito’s dissent says what the article says. Gorsuch: “[O]ur task is clear. We must determine the ordinary public meaning of [the statute.]” Majority Opinion at page 4. Alito retorts: “The Court attempts to pass off its decision as the inevitable product of textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled” Alito’s Dissent at page 3. Again:

“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of ’sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.’” Alito’s Dissent at page 13.

The opinion can be found here.

What Gorsuch is applying is “the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” (Alito page 3) (This “current values of society” approach is the “living constitution” that both original meaning textualism and original intent were meant to combat.)

The article does not correctly define original intent and original meaning, especially as those two ideas play out in Bostock.

The relevance of my criticism is mostly academic. I support the conclusion of Austin’s article. I also support academic accuracy. The idea that two “conservative” judges on the highest court of the land would both solemnly state they are applying the same judicial philosophy and still conclude with opposite interpretations is a strong exclamation mark on the advice: don’t put your trust in judges. It also lands likes a sarcastic exclamation mark on people who said the Supreme Court was the main reason you absolutely must vote for Trump in 2016. “Well, that worked out well!”

2. Overturning Roe v. Wade does not contradict either textualism nor originalism.

Exhibit number 2 in the article for why we should not put our trust in “good Conservative” Supreme Court justices is that Christians are forced to contradict themselves by holding these two propositions: (1) Roe v. Wade would be overturned and (2) Original Intent and Original Meaning are the proper interpretive framework for interpreting the constitution and statutes.  This is incorrect. Two separate issues are at work here. Overturning Roe v. Wade does not require “interpreting” past decisions a specific way. Original Intent (Originalism) and Original Meaning (Textualism) are interpretive tools.

It is firmly established that courts do not have the right to rewrite statutes. They interpret statutes. When they interpret statutes, they write opinions. Courts do, no doubt, have to “interpret” past decisions to apply them in new cases, but they also can overturn wrongly decided cases.

I am unaware of any argument that the way to overturn Roe is to interpret that decision to contradict itself and thereby go away. Christians do no want Roe interpreted to mean something it clearly does not mean (although that would be an interesting thought experiment.)

Christians want the Court to decide that Roe was so obviously wrongly decided that the Court can justify abandoning stare decisis to overturn Roe and its progeny.

Roe has been updated and modified over the years, the most famous case to do so being Planned Parenthood v. Casey. The jurisprudence that has grown out of Roe and Casey is notoriously shaky and hard to apply precisely because its origination was such an aberration from normal Constitutional interpretive tools.

The highest courts of jurisdictions (each state has its own Supreme Court) is not bound by its own decisions in the same ay that lower courts are bound by higher courts. The U.S. Supreme Court has no legal restriction on overturning past cases.

The article states:

Regardless of whether the Roe ruling should have come out the way it did, it is now written and settled law. Planned Parenthood vs. Casey in 1992 further solidified and clarified it as law. In order to abide by originalism and textualism, judges would be required to uphold the Roe decision. So, Christians must decide if they want judges that abide by originalism or textualism, or if they want to overturn Roe.

This quotation directly equates the Supreme Court’s case-law with Legislation by State and Federal legislatures. Case law is not statutory law. Period. Judges do sometimes rewrite legislation. At least, that’s what people who disagree with a decision call it. That’s what we call “activist judges.” The activist judge himself denies the claim. The judge’s job is to interpret statutes and constitutions.

Judges that overturn past judicial decisions are exercising judicial authority clearly vested in said judges as they attempt to refine and better and correct what they have done in the past.

The question Christians have to decide is whether they want judges to abide by stare decises or if they want to overturn Roe. Christians don’t have to pick between Originalism and Roe.

Christians as a rule probably do agree with the general notion that judges should more or less stick with their past decisions in an effort to maintain stability and predictability in the law. However, Christians (and non-Christians), also usually agree that if you find out you screwed something up, you should fix it going forward. Legislators make legislation, and later assemblies replace the legislation with new legislation. Judges interpret these laws with judicial opinions. Their opinions are not legislation. There is a principle (stare decises) that pushes the judge’s towards always deciding like cases the same in the future, but it is not “writing legislation” (which judges aren’t supposed to do) to write a new judicial opinion that overturns and corrects its past decisions.

The Supreme Court overrules itself. A simple Google search can uncover various times this has happened, both the recent and distant past.

The Supreme Court can (and should) overrule itself on Roe and Casey. In fact, it would be original intent and original meaning frameworks that would be used as the basis for the Court to declare “We got it wrong.” Originalism and Textualism make the strongest claim for how very wrong Roe and Casey are, and the more-wrong a decision is, the more reason a judge would have to not apply stare decisis. It was “living constitution” thinking that got us Roe and Casey, and it is the originalist approach that would result in a different outcome.

It would be interesting to see what types of cases persuade the Court to not apply stare decisis versus the types in which stare decisis is rigidly followed. Perhaps that would uncover yet further examples of why Christians should not trust “good Conservative” Supreme Court justices. As we see more and more of what “Trump’s Supreme Court” is doing, we see even more emphatically why the article is correct: “Christians, Put Not Your Trust in Judges.”

A brief reply from Austin:

“Jaired has written a thoughtful and incisive response to my original piece on judges and judicial philosophy. The main point of that article was that Christians should not put their trust in judges to bring about the policy ends they desire, and it is wrong to compromise on one’s standards and values in other areas in order to (in a blatantly transactional way) get certain judges appointed over others. But, while I value clear and precise thinking, I sometimes fail to accomplish this in pursuit of arguing my point. That was the case with my assertion that overturning Roe would require abandoning originalism and textualism. Jaired is right on this point. It isn’t either of these judicial philosophies that would prevent the overturning of Roe, but rather the prevailing judicial tradition of stare decisis, which holds that courts should abide by the precedent set by previous case law. In any case, the tension between originalism and stare decisis may very well prevent the Supreme Court from overturning Roe (even though I would personally love to see it overturned), and I stand by my original point: Christians, including myself, should be wary of severely compromising their values in the hopes that judges will deliver the policy ends that they desire.”