Article II Section 1 of the U.S. Constitution established the Supreme Court but did not mention qualifications required for appointment to it. Lawyers in the American colonies were trained in apprentice programs, and though law schools were established over time, even Abraham Lincoln became a lawyer through reading rather than formal legal education. If taken literally, conservatives’ approaches to the interpreting the Constitution would allow nearly anyone to serve on the court.
Here is why. Many conservatives contend that the Constitution should be interpreted either by reading its plain text (textualism) or by understanding the original meaning of the words based on an understanding of the historical context in which the Constitution arose (originalism). These legal theories oppose seeing the Constitution as a living document that must be interpreted according to the times in which we live.
So if we follow the plain text and the historical context at the time of the Constitution, a professor of English or history would be as qualified as any attorney to interpret the plain text of the Constitution and understand the nation’s history at its founding.
Let’s look at the impact of these conservative legal theories on recent court decisions. The recent reversal of Roe v Wade in the Dobbs decision stemmed from the use of textualism/originalism to constrain a more liberal interpretation expounded in Roe- that women have a privacy right that conveys the right to choose abortions. And conservatives do make a good point that viewing the Constitution as a living document carries the risk that jurists might interpret it according to their personal values. A right to privacy is not explicit in the Constitution.
But textualism and originalism also have defects.
Note, for example, that the second amendment includes the phrase “well-regulated militia,” which Justice Scalia appeared to dismiss in his majority opinion in the Heller case, which held that individuals have the right to possess guns regardless of any military connection. The “plain text” is there for all to read, and the Heller opinion led many to conclude that a conservative court did exactly what it doesn’t want a liberal court to do- determine the outcome and then find a way to get there.
Originalism leads to similar problems. In the Dobbs decision, Justice Alito did a deep dive into history to determine whether the right to abortion existed in the minds of people living centuries ago. Oh my. Many historians have criticized Alito’s conclusions drawn from a murky history. But also consider this. Few predicted that generally conservative Kansans would flock to the polls to enshrine the right to abortion. We can’t read the minds of living people, much less dead people.
But if textualism and originalism are to be strictly followed, experts in English and history would be valuable on the court. Moreover, each discipline has methods and standards not available to mere lawyers that would be useful in interpreting the plain text of the Constitution and the history of the nation’s origins. And, as noted before, the Constitution, strictly read, does not in any way require that a justice be approved by the Federalist Society or the American Bar Association…or for that matter, a member of any bar association.
Having read this far, you likely have already concluded that the Senate would never confirm an English professor or historian to be a Supreme Court justice. But doesn’t this expose a flaw in the argument for textualism? Wouldn’t true textualists be just fine with using the plainly but simply written qualifications for justices outlined in the Constitution?
Why is this important? Conservatives have long thought liberal justices were making up rights that didn’t exist in the Constitution, and liberals now think the court’s conservative justices are using the plain text of the document when it suits them and/or inventing history to justify their desired conservative outcome. As a result, a broad swath of the public now deeply mistrusts the Supreme Court.
There is no easy way out of our dilemma because no one theory of how to interpret the Constitution is widely accepted. And it is tempting for justices, conservative and liberal, to inject their personal views into their decisions Though they may say they don’t, many of us don’t believe them…or at least believe the justices lack self-awareness.
Justice Roberts commented recently that he doesn’t understand why the public would mistrust the court. His attitude seems we should all be good children and trust our parents. However, I should add that I am no better at understanding his mindset than Justice Alito is at understanding the public opinion of people in earlier centuries. So I can only say how the court appears to me, which is what millions of Americans do when forming their opinions about the court.
But if it helps Justice Roberts, I’ll try to explain my reaction. He commented in his confirmation hearing in 2005 that justices should just be umpires who just call the balls and strikes. As a lawyer, he should know that analogies are a weak form of reasoning. But following his lead, I point out that umpires also set the strike zone. When umpires change the strike zone from batter to batter, the players become angry. That is the fundamental reason for building the law through precedent.
Millions of Americans believe that the justices decided they didn’t like abortion, perhaps for religious reasons, and looked for a way to justify overturning a long-established precedent. Women trusted that their right to control their own bodies was constitutionally protected…until Dobbs. Careful readers can see that the phrase “well-regulated militia” must have meant something or the framers wouldn’t have written it into the second amendment. The Citizens United decision concluded that corporations have the rights of a person, though the word corporation never appears in the “plain text” of the Constitution. Bush v Gore gave the presidential election to the guy who got fewer votes, then said that the case was not a precedent to anything. These decisions appear politically based to many whether they are or not.
No doubt the justices could try to explain these inconsistencies, but if the explanations sound like sophistry to reasonably intelligent people, faith in the rule of law is damaged. If the umpire appears to keep changing the strike zone, good people will stop watching the game in disgust. And the justices will not be trusted if they act like High Priests who treat the public like children and contend that only they are capable of interpreting the Holy Text.
So following precedent is essential in maintaining public trust in the court. But there are other important factors eroding confidence in the court.
The current makeup of the Supreme Court does not demographically represent the general public. Could a lawyer who happens to be Muslim ever be confirmed to the U.S. Supreme Court? The chances are even lower than having an English or history professor on the court. An atheist would also never win confirmation to the court.
Suppose you intuitively understand that a Muslim or atheist justice, however legally qualified, could not be confirmed to the court. In that case, you are acknowledging a widespread belief that personal values inevitably affect how justices vote. Six of the current Supreme Court justices are Catholic and one is Episcopalian. Do you really believe that the personal values of these justices are irrelevant to their decisions, that they are only calling balls and strikes?
This is nonsense. Judges are creatures of their personal experiences, as we all are. And it is impossible to see the world from a completely impersonal perspective. Nor is it wise to do so.
An understanding of the modern world is essential to the making the law work. Suppose John Adams could be raised from the dead to be appointed to the Supreme Court. How long would it take him to get up to speed to rule on a case resolving whether the federal government should regulate cryptocurrency?
The public needs to believe that the Supreme Court is demographically and politically balanced but not gaslighted into believing that justices are merely calling balls and strikes. Do you believe, for example, that Clarence Thomas actually replaced Thurgood Marshall as a representative of African Americans? Five of six conservative justices were nominated by presidents who did not win the popular vote. The six Catholic justices are not monolithic in their voting, but they cannot represent the growing number of non-believers in the nation.
Conservatives have a point about the danger of justices reading too much into the Constitution. On the other hand, most of us don’t want to live as though we are stuck in 1776 as Justice Alito imagines it existed, deprived of technical, medical and psychological advances that inform modern life.
It really is time for the Supreme Court to move into the 21st Century.
George A. Harris, Ph.D.
George A. Harris, Ph.D. is a licensed psychologist in Kansas City. He previously worked in vocational rehabilitation and corrections. He was a consultant to the National Institute of Corrections and was an associate professor of criminal justice at Washburn University before entering private practice providing pre-employment evaluations for police and correctional agencies and expert witness evaluations for attorneys.
He is the author of numerous books and articles for professional and public audiences, including Counseling the Involuntary and Resistant Client and Broken Ears, Wounded Hearts, which was awarded best book of 1984 by President Reagan’s Committee on Employment of the Handicapped. He served on the reader advisor panel for the Kansas City Star. He was a founding board member of L’Arche Heartland, a group home organization for people with developmental disabilities, and along with then police chief Jim Corwin founded a task force on homelessness in Kansas City.