October 25, 2005
Why Bad Careers Happen to Good JusticesBy J. Peter Mulhern
Why do so many Republican nominees with sterling conservative credentials morph into liberals when they ascend to the Supreme Court? The list is long and depressing — William Brennan, Harry Blackmun, Lewis Powell, Sandra Day O'Connor, Anthony Kennedy, and of course, David Souter. These are just the most egregious examples.
Conservatives usually explain the 'growth' these jurists underwent after their elevation to the Court in personal terms. We mutter bitterly that they sold out for fawning editorials in the New York Times and invitations to have cocktails with the right (which is to say left) people. No doubt there is some truth to these mutterings, but there is another reason for all the desertions from the ranks of conservative jurists.
The painful truth is that for many years conservative lawyers have been losing the war of ideas. Justices who come to the Court without any strong philosophical commitments find that their job requires them to develop some. Unfortunately the newbies typically shop around and end up accepting leftist theories about what judges should do and how they should do it because those theories are better developed and more useful to a judge than their conservative competitors.
Conservatives keep losing at the level of theory in large part because the law school faculties act as greenhouses for the cultivation of jurisprudence that serves the purposes of the left. There is no conservative counterpoint to the elaborate theory of judging that Ronald Dworkin has spent a career refining. Few, if any, conservatives can match Cass Sunstein's depth, because very few have tried. Liberal Supreme Court justices stand atop an academic industry. Conservative justices have to stand on their own two feet. The collected opinions of the Supreme Court's leftists are just the tip of the liberal jurisprudential iceberg. The opinions of the Court's conservatives pretty much are the right's iceberg.
In a perfect world no Republican appointee would come to the Court without a clear understanding that Dworkin and Sunstein are wrong about everything that matters and an even clearer understanding about why they are wrong. The nomination process would weed out everyone who had not already grappled with and rejected the sophistries of the legal left. We don't live in that world. Conservatives will either develop better legal theories or they will be doomed to endless repetition of the Souter saga.
What about originalism and textualism, I hear you cry? Aren't conservatives united in their demand for judges who will give the Constitution the plain meaning it had for a competent reader of English at the time the words were adopted? After all, any number of framers said that the Constitution was a common—sense sort of document the meaning of which should be accessible to all. Take some basic reading skills, add a dash of history, stir well and, hey presto, constitutional interpretation — nothing to it. We don't need no stinking jurisprudence.
This view lurked behind many of the lamer efforts to defend President Bush's decision to nominate Harriet Miers as the replacement for Sandra Day O'Connor. It couldn't be more wrong. The catechism of the right includes a jumble of originalist and textualist principles that won't do you any good if you ever find yourself trying to author a Supreme Court opinion. Most conservatives believe an honest effort to determine what the words of the Constitution meant within the context of their own time will yield clear and desirable answers to contentious questions. It just isn't so.
Mr. Justice Thomas is the only member of the Court who follows the standard conservative prescription for constitutional reasoning. He is the poster justice for textualist—originalism. Justice Thomas is a brilliant man who almost always reaches the right result. If he can't persuasively find clear answers to difficult questions in the history and plain meaning of the Constitution nobody can. A close look at his work demonstrates that nobody can. Consider, for example, Justice Thomas's dissent in Kelo v. New London.
The majority in Kelo upheld the city's decision to take private property by eminent domain and transfer it to private developers who would rebuild in accord with a development plan. The plan included restaurants, shopping, and recreational facilities as well as a research facility for Pfizer, Inc.
The Kelo decision is universally reviled on the right and Justice Thomas's dissent is just as universally approved. There isn't much connection, however, between that dissent's reasoning and its conclusion. Justice Thomas puts a lot of effort into trying to find a resolution to the case in the plain meaning of the Fifth Amendment; that meaning isn't nearly plain enough to reward his effort with success.
The Fifth Amendment prohibits takings 'for public use' without 'just compensation.' Thomas has a threshold problem because the plain words of this provision don't require that every government taking be for a public use. The words assume a public use and require compensation. A taking for 'public use' might just be synonymous with a taking by the government. Thomas gets around this snag with the reasonable, but not purely textual, argument that the framers of the Amendment must have meant something important by the words 'public use' or they wouldn't have inserted them in the Constitution.
That said, Thomas consults the dictionary and concludes that 'the most natural' reading of the takings Clause is that either the government must own any property it takes or the 'public' must be able to use it. He supports this conclusion by arguing that this definition fits with the structure of the Constitution better than the majority's understanding that takings are authorized if they serve a public purpose. Thomas goes on to review the history of eminent domain and has to concede that his restrictive definition of 'public use' has never been universally accepted and that it entirely disappeared from legal arguments nearly 100 years ago. No matter, Justice Thomas points out that it is better to be right than fashionable.
Unfortunately, his opinion raises any number of problems much more serious than mere anachronism. The linguistic distinction between public use and a public purpose doesn't correspond to any clear difference in the real world. It is difficult to see why it should be a public use when the government owns property for the long term but not when the government owns the same property briefly and sells it to a developer to promote some public good. Why, for example, should it matter whether the government takes property to build and operate low income housing or takes property intending to sell it to a developer who agrees to do the same thing? If there is something magic about ownership New London could keep title to the property at issue in Kelo and leased it to the developer on favorable terms. Any reading of the law which makes a sharp distinction between an outright transfer and a hundred— year ground lease is anything but natural. Any decision that relies on such a distinction is almost meaningless because it is so easy to circumvent.
Justice Thomas never bothers to explain why New London had failed to show a public use even under his restrictive definition. Everyone accepts that the government could take property and give it to a private entity for the construction of a stadium because the public gets to 'use' a stadium. But parts of the project at issue in Kelo were for public use including a 'pedestrian river walk' and a 'small urban village.' Why wasn't this partial public use enough to satisfy Justice Thomas? The public 'uses' a stadium even though large parts of it are closed to the public (locker rooms, offices, skyboxes, the field, etc.) With a few citations to the record and a different conclusion Thomas's dissent could have been a concurring opinion.
Justice Thomas's dissent in Kelo isn't wrong so much as it's beside the point. It consists of semantic and historical irrelevancies followed by a dogmatic conclusion. The issue in Kelo wasn't how many angels can dance on the word 'use.' The issue was whether New London had a constitutionally sufficient reason for throwing the petitioners out of their homes. Kelo raised difficult questions about the constitutional status of property rights and the proper scope of judicial authority to review the policy decisions of elected officials. Neither the dictionary definition of 'use' nor the fascinating story of how courts split over the meaning of that word 150 years ago helps a Supreme Court justice answer those questions
Some of the questions Kelo presented should be particularly difficult for conservatives who have made a habit of attacking 'activism.' Reluctance to second guess the policy decisions that emerge from the political process is central to any theory of judging that could be called conservative. Any adequate dissent in Kelo would have to be built around a strong argument for abandoning deference to political decisions and holding that New London's redevelopment plan would not benefit the public enough to justify condemning private property. Such an argument is absent, both from Justice Thomas's dissent and from the characteristically hollow dissenting opinion of Madam Justice O'Connor.
A new Supreme Court justice struggling to grapple with a case like Kelo won't get any help from Justice Thomas's textualist—originalism. As a result, a newbie is likely to slip away from Clarence Thomas's orbit and under the influence of the Court's dark side, no matter how conservative he may be. People with questions they can't answer themselves tend to follow anyone with plausible answers, even when those answers are wrong.
'Original intent,' 'no legislation from the bench,' and 'strict construction' are political slogans. They don't represent a serious working theory of constitutional adjudication. Unfortunately they do represent all the theory most conservative judges seem willing and able to work with. Supreme Court Justices drift to the left for many reasons, but one of the most important reasons is that the left has more intellectual mass than the right. More mass means more gravitational force.
Conservative Supreme Court justices need strong enough minds to resist the pull of the legal left. They also need enough sophistication to do the hard work of constructing a better philosophical foundation for the next generation of conservative judges to build on. The right conservatives on the Court can make a huge difference. The wrong ones can do more damage than liberals.
Let's hope the President keeps this in mind the next time he chooses somebody to fill Sandra Day O'Connor's seat.
J. Peter Mulhern is a lawyer in the Washington, DC area.