Among the casualties of an otherwise remarkably uncontroversial hearing for a Supreme Court justice, perhaps due to Michael Avenatti’s bond conditions precluding his trotting out some handsome stud to allege he was sexually molested, are certain interpretative methodologies used by judges, originalism and textualism. Their meanings have been twisted.
“Originalism” would mean, among other things, that women couldn’t vote, that black people wouldn’t be people, that religious and ethnic abuse and exploitation of minorities and say gay people would be perfectly acceptable. When ACB uses that word, think about all that.
Well, no. None of that is even remotely accurate. It’s in the universe of mind-numbingly stupid things to say. Perhaps even Judge Kopf, who’s no close friend of originalism, would agree. What it means is that the Constitution (which includes the amendments to it) and statutes should be understood to mean what the original public understanding of its text meant. In other words, the word “sex” in the Civil Rights Act of 1964 should mean what “sex” was understood to mean in 1964 when the law was enacted as opposed to its expansive and fluid meaning of the moment.
There’s a reason for this. If the word “sex,” for example, was now understood to mean robots, although everyone acknowledges that no one in Congress ever gave robots a thought back in 1964 as being covered by the law, does the redefinition of the word “sex” mean that a law passed decades ago now makes it unlawful to discriminate against robots? Would it have been enacted if that had been the case? What if all the dictionaries decided to change their definition of sex to include robots today. Does that change the law? Are today’s dictionaries masters of what a law passed in 1964 meant? Is a petition by ten million robot advocates persuasive? What about the poor robots?
An argument can be made that if Congress wanted to preclude robots from the definition of sex, it could have done so. It didn’t, thus proving that at best, it meant for robots to be included, and at worst, it didn’t mean for robots to be excluded. But that’s not how writing laws work. No one can anticipate the myriad shifts in language over time so as to write in preclusive definitions just in case. Nor, more importantly, can one anticipate the deliberate change in language, to manufacture a shift in meaning so that a word already in a law is intentionally changed by well-intended schemers to include robots because there are people out there working for robot rights.
It’s not that either originalism or textualism answers all questions. As Judge Kopf rightly notes, it’s not as if the original public meaning of words or phrases is easily or necessarily understood. Judges aren’t legal historians. Perhaps more pointedly, most of what ends up in law is a compromise, and doesn’t have as precise a meaning as we would hope. They settle on words that convey a general impression that both (or more) sides can live with to be hashed out later. It’s lazy legislating, but it’s the only way a law gets passed when squabbling over a word here and there might otherwise sink a law that otherwise enjoys general approval.
Even worse, nobody other than the drafter bothers to read or ponder the specific words, and laws get enacted more on their general purpose than the specific details. Why did they chose that specific word? Not only does nobody know, but nobody gave it much thought at the time. As significant as it might be in some future case, it just wasn’t a big deal when Congress approved it. As laws got longer and more prolix, lots of words were tossed into them and reading them was a huge time sink when there were hearings to be had with TV cameras present. Priorities.
But if not originalism, not textualism, then what is the alternative? As much as these methodologies became dogma to Nino Scalia, what method should a judge employ if not a left-handed monkey wrench?
If there is a throughline in Ginsburg’s constitutional approach, it was an effort to make invisible people visible to her colleagues at the court and, if that failed, to the country and the world. Whether it was male caregivers trying to benefit from tax laws, or female cadets at Virginia Military Institute, or Lilly Ledbetter being denied a remedy for persistent, systemic pay discrimination, or the workers of Walmart, or the employees of Hobby Lobby, or minority voters in the South, or immigrants, prisoners, LGBTQ Americans, or Milwaukee voters vainly attempting to vote during a pandemic, Ginsburg saw them, and understood that her actions would influence their lives.
While it’s fair to say that Judge Barrett has been nominated to fill Justice Ginsburg’s seat, it’s nonsensical to argue that ACB is obliged to further RGB’s jurisprudence. Even so, Dahlia Lithwick’s characterization of how RGB ruled is a gross misrepresentation. It was not simply that the powerless won and powerful lost. Women didn’t always prevail over men just for being women. Black people didn’t prevail over white just for being black. Workers didn’t prevail over corporations just for being workers. Justice Ginsburg’s rulings were not Lithwick’s simplistic outcomes for the people who made Dahlia sad.
This isn’t “judicial activism” or “legislating from the bench,” but rather a lifelong effort to broaden the notion of equality to include marginalized, powerless, forgotten, and invisible groups.
What RBG did wasn’t necessarily “judicial activisim,” because what she did wasn’t this woke idealization that Lithwick describes. While Justice Ginsburg had a deep appreciation of the impact of her decisions on the “marginalized,” her rulings were grounded in law and reason, even if one disagreed with them.
Barrett has a constitutional worldview, and that is her prerogative. It may be a mechanistic, automatic, and even on occasion “humble” judicial enterprise. But it will have a real material effect on Americans’ lives, and no amount of empathy and compassion or quotes from Ginsburg will reverse those consequences.
The question isn’t whether Supreme Court decisions have “a real material effect on Americans’ lives.” Of course they do. That’s the point. The question is how they’re to be decided, based on who touches Lithwick’s broken heart or some rational jurisprudential method. If she feels horrified and exhausted by the discriminatory treatment of robots, does that mean a “good” justice will interpret “sex” to include them because they’re “invisible” no matter what the law says or meant when enacted?
Or does it mean that a justice can appreciate that the choice between competing sound, rational constitutional or statutory interpretations should be informed by whether the decision serves to ameliorate an outcome that’s unduly, even needlessly, harsh to a maligned party?
When the monkey wrench can be used by either hand, it can go either way. Wield the tool of law fairly, rationally and for the benefit of the maligned party, but don’t toss the tool aside and become a tool of the heart. No, your favored party won’t always win, and isn’t always right, but it’s the best a justice can do. As for robots, they have no heart and lack the capacity to care either way.