By Steven I. Platt
The writer is a Senior Circuit Court Judge.
I have written on this subject previously. The first time was in 2017 when the former President Donald J. Trump appointed now Justice Neil Gorsuch. The second time was in 2020, when Justice Amy Coney Barrett was appointed. Each time I ended the article by rhetorically asking the question to each new justice: “What kind of democracy do you want?”
In 2022, the U.S. Supreme Court began answering that question definitively, and very methodically, usually by a 6-3 vote. They did so in the name of “originalism,” the doctrine which conservatives have historically preached from whatever hilltop perch they could find, in words which former D.C. Court of Appeals Judge Robert Bork articulated in his book, “The Tempting of America.”
Those words proscribed that what a judge should do when interpreting the Constitution, is to determine how the words used in the Constitution would have been understood at the time of enactment. This is the “doctrine of original intent,” or originalism. It is sometimes confused, ironically, by conservatives with “the legal process school” of jurisprudence which emphasizes that the law should be interpreted in accordance with “neutral principles” derived from the text of the Constitution, statutes, and appellate court opinions with precedential values.
Now, however, it is becoming increasingly obvious that greater reference on historical analysis, in some cases at best selective, and worst fatally flawed, has produced judicial opinions totally devoid of any reference or even relationship to the text of the U.S. Constitution. These decisions are, however, chock full of judicially created rules of interpretation that would, and in fact do, make me and any other pragmatist judge or even a law professor blush.
There are examples of this in each of the opinions which drew the most attention in this term. Perhaps the most glaring is in the case of West Virginia v. the U.S. Environmental Protection Agency in which Chief Justice John Roberts expressly announced that, for the first time, the Supreme Court would apply a “major questions doctrine” which according to the six-justice majority holds that in “extraordinary cases,” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that in the judges’ views are “highly consequential posing questions of economic and political significance.”
This writer has searched, in vain, for this language or even language that suggests these concepts of judicial interpretation in the U.S. Constitution or even in a statute. This language isn’t to be found in The Constitution or any statute because it isn’t there.
For that reason, Chief Justice Roberts, in his opinion in West Virginia v. EPA invents a new method of judicial interpretation to reach the result that his majority wants, which is much greater limits on the authority of EPA or any federal government executive agency. This is a political decision, not a judicial doctrine of interpretation or a “neutral principle” derived from the text of the Constitution. Whether I or any reader agrees with it or not is not, therefore, the point.
To be fair, Justice Gorsuch, in his concurring opinion, briefly tries to frame the issue as a “non-delegation doctrine” issue in order to justify the result-driven ruling. The “non-delegation doctrine” previously held that Congress may not grant rule-making authority to the executive in broad or discretionary terms. The problem with this post-mortem justification is that the founders of our country, based on available research, were, to say the least, not interested in the issue.
This historical fact is further evidenced by the acts of the very first Congress, which made broad delegations to the executive in a variety of areas including military service. According to law professor Adrian Vermeule, the non-delegation doctrine was first invoked by the Supreme Court in the 1930s as a means of invalidating parts of The New Deal. Furthermore, as Vermeule points out, its roots are not in jurisprudence, but rather in academic treatises on constitutional theory. Very simply put, the non-delegation doctrine does not fit in either a textualist or even a historical jurisprudence timeframe.
That all said, the question remains: Does judicial philosophy make a difference? The answer appears to be YES — but only if you view judicial philosophy as a game of semantics designed to reach a political result. That is true of all of the judicial philosophies, including the one that this writer subscribes to — pragmatism.
It seems to this writer that the political goal of the so-called six originalist justices was a government guided by the principles of libertarianism. In their broadest application, those principles may have some political appeal, but if we are to maintain our republic and the democracy that has historically come along with it, we should adopt these principles by voting for them, not by judicial fiat or authoritarian rule. For that reason, I continue to watch for signs of a more pragmatic U.S. Supreme Court, although the vision of the near future does not provide a great deal of hope.
The kind of democracy we will have will result from whether we choose originalist and/or textualist judges or alternatively pragmatist judges, such as the originator of the judicial philosophy of “legal pragmatism,” Justice Benjamin Cardozo and its most illustrious modern-day practitioner, retired appellate Judge Richard A. Posner, implemented.
Pragmatists believe that legal rules should be viewed as instruments of justice. As Cardozo said, and Posner emphasized in his writing, “Few rules in our time are so well established that they may not be called upon any day to justify their existence as a means adopted to an end.”
The Pragmatist Judge is interested in “the facts of the case” and in what works and what is useful. Therefore, he or she wants to be informed as much as possible about the operation and probable effects of alternative judicial courses of action. Judicial pragmatism is the antithesis of legal certainty.
The pragmatist judge recognizes, as Posner points out, that “society’s most tenaciously held truths are not those that can be proved, probed, discussed, or investigated.” These beliefs are what lay people call “common sense” in what lawyers, judges, and social scientists refer to as “frame of reference.”
Any judge or justice whose judicial philosophy requires him/her to refuse to consider the effect of their decision on the people who will be impacted by that decision because the judge believes he/she can divine the certain and ultimate truth without considering or even knowing the facts of the case either is not wise enough to have learned that you can’t ignore reality when you make decisions affecting peoples lives, including your own, or is so arrogant that he/she doesn’t believe facts matter.
It seems to me, in the long run, that this concept is neither an effective political message nor a viable long-term judicial philosophy. Among the questions it raises is: Why is the origin of the law more important than the result? In other words, why is process more important than substance?
Bottom line: the function of law is to ensure justice and equilibrium. The origin of the law is not the main thing — the goal is. There can be no wisdom in the choice of a legal path unless we know where it will lead.