Monday, July 12, 2010

Impartial Justices Are Like Effective Solutions to the BP Oil Spill

I haven't spent too much time studying constitutional law, but in the time that I did study it, I gleaned one big take-away. No matter what judges and politicians say, constitutional interpretation is results-oriented.

Senator Orrin Hatch (R-UT) published an essay today explaining his opposition to Elena Kagan's nomination as the next justice of the United States Supreme Court. In it, he lambastes Kagan for her one-time assertions that “new times and circumstances demand a different interpretation of the Constitution” and that judges may “mold and steer the law in order to promote certain ethical values and achieve certain social ends.”

Senator Hatch is not wrong that judicial interpretation of the Constitution should be completely objective and based on written law, not on personal values. But he is either lying or incredibly naïve if he is claiming that the justices that he did vote for are taking such a disinterested approach to constitutional law. Every justice has his or her own beliefs, ethics, and values, and now matter how much they claim to follow the text, context, or intent of the constitution, in the end, the reality is that they are simply taking a side in a debate. Some justices are certainly more reasoned than others and outline their positions more cogently and eloquently, but at the end of the day, justices are molding methods of constitutional interpretation around their own views.

It's called constitutional interpretation for a reason; justices are interpreting the document, not just reading it and affirming what it means in the context of a specific case. In fact, there are many different approaches to judicial interpretation, and different justices prefer to use different approaches. Even when Scalia claims to be a "strict constitutionalist," it is simply his own interpretation of the words of the Constitution, laid out in a context in which he can defend his own conservative worldview.

And Senators are certainly no different. Even as Hatch denounces the idea of "results-oriented" decisions, he will vote against a woman whom most mainstream observers have deemed "unscathed" after thorough scrutiny. Why? Because he's a staunch conservative and doesn't want to see another Supreme Court Justice sworn in whose views differ starkly from his own. The trick, of course, is to write a reasoned essay that purports to take an unbiased approach to assessing Kagan's judicial credentials.  A results-oriented approach to carrying out Senatorial duties, if you will.

Images: Senator Hatch (Associated Press)

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