Had it been a prize fight, Justice Stephen Breyer would have been knocked out less than halfway through his debate today with Justice Antonin Scalia.
Breyer and Scalia, appearing in Tucson at an event sponsored by the William H. Rehnquist Center, were debating how to interpret the Constitution.
Scalia’s intelligence, energy, clarity and wit dominated the debate just as “originalism” – the notion that the Constitution must be understood to mean what the people of America thought it meant when enacted — now dominates the jurisprudential landscape of the United States.
And like a prize-fighter who has been knocked out while still standing, leaning against the rope, Breyer was left muttering about all of the really difficult moral decisions he has to make based on his understanding of his role – as the final decision-maker for every difficult question facing the American people.
“I don’t know how you sleep at night,” Scalia said to Breyer, as Breyer complained about the difficulty of deciding whether it was “cruel and unusual punishment” to execute a 16-year-old.
“Where do you draw the line? Is it 18? 16? Is it 14? I don’t think anyone would think it was OK to execute a 12 year old,” Breyer lamented.
But the question for justices of the Supreme Court is not “where do you draw the line,” but who draws the line.
For a legislator considering whether to enact the death penalty for juveniles who commit horrific crimes, these are great questions to ask.
But for a Supreme Court Justice, the only question is whether the text and words of the Constitution prevent a legislature from enacting the death penalty in such a circumstance. If there is no evidence that “cruel and unusual” was understood to prevent such executions, then the matter is left in the hands of the legislatures of each state, in each generation.
As Scalia points out, there are plenty of stupid laws. That doesn’t mean they are unconstitutional.
The Constitution was intended to provide specific exceptions to the general rule that the people decide issues through their elected representatives. Those exceptions were specific, and limited.
At times, they require the application of broad principles to new circumstances. What they don’t allow for is the creation of new principles – which is what the Supreme Court in the judicial activism era of the last half-century has too often done.
Understanding the difference between the role of a judge and the role of a legislator is important.
Without exception, every moral problem Breyer presented as a perplexing dilemma for the Court to decide, is an issue that elected legislatures can address.
The temptation for judges to impose their policy preferences by distorting the Constitution will always be present. But as one who has watched this issue closely for nearly three decades, it appears to me that the tide has completely turned.
When I started law school in the mid-1980s, Attorney General Edwin Meese created a ruckus by attacking the activist decisions of the Warren and Burger courts with his emphasis on “original intent.” Justice William Brennan responded, and the debate was on. At that point, originalists seemed completely outnumbered politically and were statistically insignificant in the legal community.
The defeat of Supreme Court nominee Robert Bork – a leading originalist – in 1986 was a dreadful low point.
But today the evidence is all around us that originalists dominate. Even liberal Supreme Court nominee Sonia Sotomayor was forced to pay homage to originalism in order to be confirmed. Chief Justice John Roberts explained the judicial role so clearly in his confirmation hearings, he was said by an admiring liberal senator to have “retired the trophy” for confirmation performance.
At the Scalia – Breyer debate, despite several provocations by Scalia, Breyer simply refused to defend the high-water mark of judicial activism – the Court’s abortion jurisprudence, beginning with Roe v. Wade.
I remember my law school professor – a pro-choice liberal – explaining to our class that the Supreme Court “just made it up” when it came to the right to abortion.
So many liberal lawyers agree with the outcome, yet realize Roe v. Wade and its progeny are completely indefensible as a matter of constitutional interpretation.
Finally, the notion of a “living Constitution” has been exposed for what it is – a vehicle through which Supreme Court Justices arrogate to themselves the power to decide whatever they want to decide, based on their own policy preferences.
I founded the first student chapter of The Federalist Society at ASU in 1985, which felt like a subversive act given the fact that not one law professor on our faculty would initially consent to sponsoring the group. Later, I started the first Phoenix Lawyers Division chapter of The Federalist Society. The Federalist Society is the organization more than any other that is responsible for leading originalism to its current place of intellectual and jurisprudential domination.
Assuredly, there will be battles ahead. There will be some who give lip service to originalism but continue to find new ways to place the constitutional seal of approval on their own policy preferences.
But having been present at the birth of the conservative counter-revolution, it was exciting for me to be able to bring the college students in my Supreme Court class – including my own daughter – to a debate that demonstrated the intellectual end of the argument for liberal judicial activism.