According to Chief Justice Roberts, judges are baseball umpires who apply rules impartially to disputes. As neutral actors, judges make everyone play by the rules but do not take sides themselves.
But with members of Senate locked in a heated debate whether Obama or the next president should name Scalia's replacement, we are reminded yet again just how political the Supreme Court has become.
In decisions after decisions, the Court has waded into the most politically contested issues of the day, from abortion to gay rights to campaign contribution limits to national health insurance. Scholars now routinely predict how each Justice will vote based on his or her ideological persuasions alone, irrespective of the legal issues presented.
Justice Roberts would like us to reminisce wistfully about a day when judges are umpires of the law. But I don't think that day ever existed.
It used to bother me to no end to think about how respected lawyers and judges of the past - competent in every other way - used the Constitution to justify so many policies we find reviling today: from slavery to the Indian Removal Act to segregation to the Chinese Exclusionary Act to the Japanese internment.
Were previous generations all so uninformed or corrupt? Have we, in the late 20th and early 21st century, magically stumbled onto an enlightened way of reading the Constitution?
Or does the Constitution in fact allow many legally valid results, as the Legal Realists would say, and whether result is sound or not depend not on the law, but on the norms and worldviews of those looking at the case?
The illustrious American jurist Oliver Wendell Holmes famously observed over a century ago that the law was rarely determinate. The law invariably embodied a sufficient wide body of rules and principles that a skilled jurist, by selecting which facts and principles to emphasize, could reach whatever result appeared just. "The life of the law has not been logic; it has been experience," Holmes wrote.
It is popular today to lament the politicization of the courts, as if there were an area of the law that embodied black and white rules that might be mechanically applied. In truth, any sufficiently robust body of law could never be reduced down to a rule book.
Take Citizens United, for example. The Court was asked to judge whether the unlimited campaign contributions violated the Constitution. In a 5-4 decision, the Majority focused on notions of Freedom to conclude that they do not. The Minority focused on notions of Equality or Democratic Legitimacy to conclude that they do.
Both sides accused each other of being misguided even though all should know that the Constitution per se does not - cannot - give an answer.
The Constitution provides a framework for framing the resolution the most pressing issues of the day in terms of most cherished principles of the land. But when fundamental principles evoked by the Constitution collide or a balance between those principles must be struck, the Constitution becomes deadly silent.
As Shakespeare famously wrote in the Merchant of Venice: "justice" mechanically applied is no justice at all. Any application of law must allow for human judgement and heart to play the leading role.
This is not a defect of law: it is the very point of law.
Even the late Scalia, revered for his intellectual straightforwardness and his theory on originalism, habitually exercises personal judgement and discretion in interpreting the Constitution.
Consider United States v. Eichman. Scalia had voted to hold a federal statute that outlawed the burning of American flags unconstitutional. But as Scalia himself must have also known, at the time the Constitution was written, flag burning was not considered a purview of the First Amendment. The First Amendment forbid the advanced prohibition of speech, but not punishment of actual speech that were later found by a jury to be blasphemous, obscene, or seditious. (It was not until 1931 in Stromberg v. California that the Supreme Court held that a law that prohibited the display of a "red flag" could violate the First Amendment.)
Scalia justified his position by arguing that the words "Congress shall make no law abridging" was general and did not contain any limitation on its applicability to subsequent controversies such as flag burning. That is true. But left unexplained is why he chose to abstract the Constitution's words in this case into general principles when he had advocated using historical circumstances to limit the meaning of the Constitution's words in other cases.
As we look forward to the appointment of Scalia's replacement, we should do each other a favor by doing away with Roberts' faux imagery of judges as umpires. If we must have Supreme Court Justices solve our most pressing issues, let us look to our Justices as village elders not umpires. Let us esteem our Justices for their worldviews and judgement, not legal knowledge.
In an era when so many have become dis-enchanted with the democratic process, it is understandable that many would wish to escape the tumultuous halls of the people by looking to "serenity" of law and order.
But the law itself is empty. It has always been.
It is up to us whether we want to look to village elders - in hushed chambers - or ourselves - through democratic deliberation - to breathe life into the Constitution. But let us stop once and for all the worshiping of the false gods of law - of judges as "impartial" umpires. That obfuscation only corrupts our democratic politics and does nobody any good.
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