The year ahead has the potential to be historic for the U.S. Supreme Court. With Justice Brett Kavanaugh replacing the inconsistent Justice Anthony M. Kennedy, conservatives have a majority on the court for the first time since 1936.
More importantly, for the first time in generations a majority of the justices on the court believe, to varying degrees, in interpreting the Constitution according to its original meaning. This could produce a return of humility to the judiciary.
For decades, liberals have pushed a view of the high court and a method of judging that is antithetical to our written Constitution. Founded on beliefs from the legal realism movement – still the primary approach taught today in American law schools – the left deems the law as just politics and power.
Under this view, the courts are to worry about outcomes rather than the process of determining what the law means and applying it to the facts of the case. Forget about the ideal of blind Lady Justice. She has both eyes wide open to hand legal victory to the preferred party.
This worldview was on display when President Obama said he wanted judges who had empathy. Of course, this was selective empathy, such as for racial minorities, unions and criminal suspects – not for corporations or the police.
But the Constitution demands a better way. As Chief Justice John Roberts suggested during his confirmation hearings, judges are like umpires – just calling balls and strikes. In other words, a judge’s job is to follow the right process, not reach a preferred outcome. The outcomes take care of themselves.
These two competing visions of the proper role of a judge lead to two very different ways of interpreting the Constitution. For the judge-as-philosopher-king model, judges exercise the same power as legislators, free to change the meaning of the law as they see fit. Hence, the Supreme Court can write its own values into the Constitution.
For the judge-as-umpire model, however, the court does not make the law. Rather, it determines what the words of the law meant at the time of the law’s enactment, and applies that meaning to the case at hand. This methodology of discerning the law according to its original meaning is called “originalism” when dealing with the Constitution and “textualism” when dealing with statutes.
And in some form or another, this way of judging goes all the way back to our nation’s founding.
From the Constitution’s perspective, originalism is superior to an approach where judges just implement their policy preferences. There are at least two reasons for this.
As Chief Justice John Roberts suggested during his confirmation hearings, judges are like umpires – just calling balls and strikes.
First, originalism is the only legitimate way for judges to exercise the “judicial power” granted them by the Constitution. That power is abused – or more accurately, legislative power is usurped – if, as Alexander Hamilton warned, “courts … exercise WILL instead of Judgment, the consequence (being) the substitution of their pleasure to that of the legislative body.”
Second, allowing courts to bend the law to their own desires weakens the republic. The power to amend the Constitution was left with the people – the sovereign – to be exercised through state constitutional conventions and their representatives in Congress.
President Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Now committed to originalism, a majority of the Supreme Court can begin the process of restoring the Constitution to its original meaning and returning the judiciary to its place as the “least dangerous” branch. And that restoration may well begin in 2019.
Perhaps the most immediate area, but also the most influential, will be cutting back the administrative state. The federal government has swollen to a gargantuan size with numerous federal agencies passing tens of thousands of pages of regulations every year that never undergo approval by the House and Senate and signature by the president.
When designing the Constitution, the founders understood that the accumulation of power can lead to tyranny. To prevent this, they diffused power at the federal level by creating three branches of government exercising three different powers. The founders also diffused power between the federal and state governments. This created what Madison called a “double security” for the people’s liberty.
But President Woodrow Wilson introduced the idea that these constitutional protections have become antiquated and inefficient. Accelerated by President Franklin Delano Roosevelt during the New Deal, our government evaded the separation of powers by concentrating all three powers – executive, legislative, and judicial – in federal agencies.
The Supreme Court can put a stop to this in at least three ways.
First, in this term’s Gundy case, the high court can once again enforce the Constitution’s separation of federal power among the three branches by resuscitating the nondelegation doctrine. Simply put, that doctrine holds that one branch of the federal government cannot delegate its power to another. Congress cannot authorize agencies to pass rules that legally bind the public in its stead.
Second, the court can kill the judicially created doctrine of requiring federal judges to defer to agency interpretations of ambiguous statutes and regulations. It is a court’s constitutional role to determine what the law means in a dispute before it, and it should do so without deferring to any party, particularly not a different branch of government.
The Supreme Court has the chance to end deference in the context of regulations in this term’s case of Kisor v. Wilkie.
Finally, the court can restore the constitutional fact that all of the executive power has been vested in the president. Therefore, to exercise that power and see that the laws are faithfully executed, the president must be able to oversee all who work under him.
Congress has sought to insulate some federal agencies from presidential oversight by making them independent of the president’s ability to remove their leaders or check their actions.
But this just creates a politically unaccountable, and potentially rogue, faction of the executive branch. That’s not what the Constitution allows.
The Supreme Court should overturn past cases, such as Morrison v. Olson and Humphrey’s Executor, which allowed federal prosecutors or agency commissioners to act free from White House control.
The Constitution, as written and understood when enacted, is our supreme law. The Supreme Court has long viewed its own pronouncements as on a par with our founding document.
The high court can restore judicial humility by following the Constitution’s original meaning, until the people choose to change it. And if the court begins this process of restoration in 2019, it will be a very good year for the republic.
James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.