Commentary
Last June, the Supreme Court made its ruling in
Bostock v. Clayton County, a case that asked whether Title VII of the Civil Rights Act of 1964 prohibited employers from discriminating against gay or transgender people. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the Court’s liberal core, were predictably aligned in favor of the view that it did. Chief Justice John Roberts, whose positions on such cases are harder to guess, sided with them, tipping the majority. Then came the sixth vote and the author of the majority opinion: Justice Neil Gorsuch.
Social conservatives were shocked. Their hopes for the judiciary were no small part of the reason they preferred Donald Trump to Hillary Clinton in 2016. How, many wondered, could the Court have strayed so far from the plain meaning of a statute—and how, of all its members, could it have been Gorsuch, President Trump’s first nominee to the nation’s highest bench and possessor of a doctorate earned under the late John Finnis, the famed Oxford philosopher of natural law?
They should have been asking themselves a different question: When will conservatives of all stripes—from social to constitutional—stop regarding the judiciary as the one thing needful? It is notoriously unreliable as a vehicle for policy. It is fundamentally anti-republican, displacing the nobility of political life, in which citizens engage, with the superintendence of those whose qualification is their removal from politics.
More than judicial philosophy is at stake. The underlying question is whether the res publica—the Roman “public thing” that forms the root of the word “republic”—has the opportunity and incentive to sort out the most important political and social questions. The res publica is the space where conversation about the commonwealth—the truly common good—occurs. It is where citizens develop skills not only of argument but also of open-mindedness. It is also where accommodation to one’s fellow citizens is a necessity. The judiciary risks suffocating it by doing the res publica’s work.
The preservation of self-government animated the wave of originalism most associated with conservatives like Robert Bork. More recent waves, whose most distinguished proponents include Roger Pilon, Randy Barnett, George F. Will, and Richard Epstein, among other advocates of what has come to be called “judicial engagement,” are rooted in a fear of self-government’s propensity for excess and abuse.
The problem with the latter view is its own premise: All power is subject to abuse. Judges are not exempt from the temptations that afflict other mortals. On the contrary, if they are a small group, anointed as philosophers supervising self-government, they might be uniquely prone to the seductions of power.
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That particular temptation—which lies at the intersection between untethered reason and unchecked power—is the key to understanding Gorsuch’s opinion in
Bostock. That opinion illustrates, as well, what has been missing from approaches to jurisprudence that prize philosophy but ignore disposition. The short answer to how Gorsuch got from a 1964 law to a 2020 ideology is: Step by step. None of them was wildly unreasonable. If anything, they were all too antiseptically rational, the products of a doctrinaire textualism that examines words with such precision that they are, like magnified dots in a pointillist painting, severed from the whole they constitute.
The chain of reasoning, in brief, was this: Title VII of the Civil Rights Act prohibits discrimination on the basis of sex. The Court has consistently defined discrimination in “but for” terms: An action is discriminatory if it could not have been taken except by reference to the quality in question. Discrimination against a transgender, gay, or lesbian person necessarily refers to sex: If one identifies as a woman and is biologically male, or vice versa, discrimination intrinsically entails taking account of sex. Ipso facto, it is impermissible.
One can fault the Court’s precedents. “But for” and “on the basis of” are not the same thing. Still, there was an impeccable logic to Gorsuch’s analysis. It is the same kind of logic that can prove, premise by premise, that a tree has not fallen in the forest if no one is there to hear it. That is a question only an abstract philosopher could take seriously. It may be the stuff of casual academic conversation. It is unlikely to provide the basis of reasoning for anyone who actually needs to know whether a tree is standing or on the ground.
As Gorsuch magnified text nearly by the syllable until it blurred into incoherence, no one in the 6-3 majority seems to have asked: What is our job? A self-awareness of that job—inseparable from disposition—leads one who has arrived at the end of Gorsuch’s path from 1964 to 2020 to another question. It is not the question of whether discrimination against transgender or gay people is morally defensible. It is not whether it should be made illegal through legislation. Rather, the inquiry at the intersection of philosophy and law is this: To whom do the Constitution and, in Bostock’s case, federal statute belong? More to the point, where do they belong? In the courtroom, or in the res publica?
These questions cannot be answered by judicial philosophy alone. They are, rather, deep questions of politics and constitutionalism that judges are no better equipped than the rest of us to explore. They are also questions that may ensnare judges in perverse incentives.
Put otherwise, we cannot answer what a judge should do until we have asked what his or her job is in the first place. It inescapably entails what Alexander M. Bickel
called “something of prudence, not construction and not principle.” Judge J. Harvie Wilkinson III, one of the great contemporary practitioners and exponents of judicial prudence,
has written that the judge’s “first question should be not ‘What do I decide?’ but ‘May I in fact decide?’” That is true with respect to jurisdictional questions. But once jurisdiction is given, there is an intermediate step that defies easy definition. Gorsuch skipped it. That step can be imperfectly expressed as: To what extent should I decide?
There is no formulaic answer. Rather, it involves the virtue of prudence. Justice Felix Frankfurter, then a legal scholar, called this quality “judicial statesmanship.”
Judges cannot put abstract logic on autopilot. In the modern era, when jurisdiction is discretionary, they do not operate under the compulsion that Chief Justice Marshall observed in
Cohens v. Virginia: “The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us.”
Marshall’s wisdom endures in the sense that judges cannot, nor should they dogmatically, avoid difficult questions. But judicial prudence counsels a certain reticence and humility when making them. “The most important thing we do,” Justice Louis Brandeis
remarked to Frankfurter, “is not doing.” Not doing leaves space for republican processes, and constitutional processes, to operate. The decision to refrain from deciding is prudential in the sense that it cannot be reduced to a formula. Very few things in politics can be.
This disposition is often called “judicial restraint.” That is not wrong, but it is not exactly right, either. We do not speak of congressional or presidential “restraint,” but neither does
Federalist 51—whose instrument for maintaining the separation of powers was the ambition of each branch of government to protect its own authority—license all-out institutional warfare. We expect, or should expect, presidents to have a sense of the scope of their authority rather than reflexively seeking to expand it. We criticize Congress for excessive deference to the other branches.
The situation of judges is similar: They should have a sense of place and authority, and their abuses should be checked by the other branches. That is impeded by a linear model of the Constitution that gives judges the last say on constitutional questions rather than making them part of an ongoing conversation between branches. James Madison
remarked in 1788 that such a linear model “was never intended, and can never be proper” in a republic.
By leaving judges functionally unchecked, this model also emboldens them to pursue abstract reason wherever it leads. The emphasis on reason, in turn, repudiates moderation on the grounds that it flinches from principle. Defending the American colonists in Parliament, Edmund Burke
observed: “It is besides a very great mistake to imagine that mankind follow up practically any speculative principle, either of government or of freedom, as far as it will go in argument and logical illation.” Statesman do not, but philosophers might. “Let justice be done though the heavens fall” is poetry to the philosopher but insanity to the statesman.
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On what authority might judges possess this final authority to follow reason wherever it seems to lead? A deeper question lurks behind it: Why should the Constitution bind us?
The philosopher’s answer is that reason shows us its justice, or utility, in the present. That is also the answer offered by many proponents of judicial engagement. Barnett, for example, argues that the views of those who wrote the Constitution are not binding unless “we
today believe it a good enough constitution to follow.” Hadley Arkes, a proponent of natural-law constitutionalism, draws an explicit contrast with tradition. Custom, he
writes, moves “from an independent ground of right and wrong—from a moral understanding that does not depend on the vagaries of local cultures—to a ground of jurisprudence that reduces to the ‘habits of the tribe,’ or to the opinions that are dominant in a particular country.” Instead, Arkes insists, we must rely on “moral truths,” as opposed to “political traditions,” as the basis of jurisprudence.
There is something to that, although moral truths should guide all of politics, not just jurisprudence. What Arkes’s observation does not answer is how we are likeliest to discover them. Our reason, in the here and now, unchained from the wisdom and experience of the past, may be the least reliable vehicle. The point of custom is not that whatever has always been done must forever always been done. It is, rather, a prudent recognition that reason without reference to the past is inclined toward self-infatuation, error, and abuse.
Burke, the great proponent of custom as a guide, can be called many things, but not a relativist. He took suspicion of one’s own reason as itself a moral principle, grounded in the virtue of humility. The “collected reason of ages,” he
wrote, was a more reliable source of moral truths than the detached reason of the wisest individual at a single moment in time.
An equally important question is this: What is likeliest to instill respect for moral truths: a political system in which they are dictated by judges sitting on high, or one that compels citizens to pursue them, and be responsible for them, together? If the discrimination outlawed in Bostock is wrong, lawsuits will not stop it. Instead, that or any other moral principle requires buy-in from citizens who are willing to act on it daily, whether within or outside the view of the law. Citizens must persuade one another, including encouraging each other to respect the rights of political minorities. If they cannot, any project to protect rights is doomed. Berating them from the bench is likelier to trigger backlash than compliance.
The broader reality is that contemporary reason cannot obligate, and certainly cannot sustain, a political community. Because human beings err, reason leads to divergent conclusions. It exists outside of time, with no sense of duty to the past or present. It provides no sense of obligation beyond the desires and the philosophical conclusions of the contemporary moment. It is, instead, like the inheritor of a centuries-old manor house who decides it does not suit his immediate needs and so tears it down and replaces it with a modern, and transient, edifice.
Such an individual has violated ties of obligation—certainly to the future, but also to his ancestors—unless the premise is that only the here and now, and the conclusions we reach in it, matter. It is the same mentality that would reflexively trust the empirical research that came out in an academic journal yesterday over beliefs and practices that have stood for centuries. It is also a mentality that could never found or maintain a regime, for the founder would simply be addressing perceptions of immediate needs, with no sense of deference to what has come before and no sense of duty to what will come later.
Perhaps we possess the enlightenment, now, to assess both our contemporary needs and our intergenerational obligations. Conservatism, at any discrete moment, would incline toward doubt. “For man is a most unwise and a most wise being,” Burke
observed. “The individual is foolish; the multitude, for the moment, is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species, it almost always acts right.”
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At a minimum, this would suggest a circular rather than linear conception of constitutional interpretation, one in which courts play a role—Madison would say a subordinate one—but do not render the final word. That entails equal obligations on other political actors not to construe the Constitution as entitling them to push its limits until judges restrain them. Roberts has likened judges in a constitutional regime to umpires in baseball. The presence of umpires does not license players to cheat if they can get away with it.
This mentality—the exercise of power is permissible unless a judge says it is not—is pernicious and corrosive. The belief that aggrieved constitutional officers should seek protection from judges rather than protecting themselves may be more pernicious still. At the risk of painting with too broad a brush, the first has been the temptation of modern executives, while the second has seduced contemporary legislators.
In 2014, President Obama issued a sweeping executive order that bypassed Congress on immigration. Republicans took the bait and sued. Confronted with the argument that Obama had acted unconstitutionally, Representative James Clyburn, a South Carolina Democrat,
replied: “Let’s let the courts decide whether it’s constitutional. That’s not for Congress to decide, that’s why we have the courts to make that decision.” A few years later, the Democratic majority in the House was suing the executive branch to enforce subpoenas.
Both practices encourage lassitude from Congress, which in reality wields a multitude of constitutional weapons for protecting itself. The spending power is chief, but not alone, among these. Why should Congress make the effort, though—why should the political processes of the Constitution operate—if judges will do the work for them?
Thus the question of prudence. An all-out wrestling match of ambition against ambition flees the question of what role any one actor should actually play in the regime. Madison, for example, adhered to a modest view of the powers of the presidential office even while he occupied it, a sin for which historians have generally derided him as a failed executive.
Yet power—whether presidential, congressional, or judicial—is not a plaything that exists only to be used. The constitutional view of judicial power is modest.
Federalist 78, for example, says the judiciary should only set aside a legislative act if it is at “irreconcilable variance” with the Constitution. That suggests a duty of judges to reconcile an act with the Constitution when they can—in other words, explicitly to refrain from blocking the processes of self-government unless the abuse is beyond dispute. It is an admonition to judges to refrain, on principle, from exercising the power available to them.
Power inherently presents a risk of abuse. That, paradoxically, is the premise of those who want to give judges unchecked power. But the expansive projection of judicial power presents particular dangers. Philosophy detached from prudence elevates reason beyond the boundaries of reasonable confidence. It desiccates the res publica by either suppressing its activity or making it unnecessary. It dries up the ties of obligation that enable a political community to endure. Originalists might also concede that no element of the Constitution of 1787 can justify it. They should rediscover judicial prudence as the anchoring quality that grounds judicial philosophy. Both matter. Each without the other is dangerous.
From RealClearWire
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
