“It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be.”
—Dahlia Lithwick, “It's Complicated: David Souter finally tells Americans to grow up,” in Slate
Lithwick’s article is about the retired justice’s now-famous commencement address to Harvard’s graduation class two weeks ago, in which he showed for the nonsense it is the right’s wildly politically successful solipsism that the role of judges and Supreme Court justices is, like that of baseball umpires, limited to calling balls and strikes—an easy job because the provisions of the Constitution are clear, specific, narrow, easily interpreted, and never mutually exclusive of other provisions in the Constitution. Souter calls this the “fair-reading” model of constitutional interpretation.
Souter noted what everyone who actually deals with constitutional interpretation, as a judge, a lawyer or a law professor knows, but which many who do find it useful and easy to sell the snake oil that the provisions of the Constitution are clear enough to simply “apply.” Some are, most aren’t, and some that are conflict with some provision.
Meaning that judges and justices must choose one provision over another. Or, as Souter phrased it, they must choose between two conflicting values expressed in the Constitution. Judges and justices who cite only the value, or the provision, that they choose to privilege, and fail even to acknowledge the competing one are intellectually dishonest.
And then there are judges and justices who claim to be constitutional “textualists” whose invocation of clear constitutional text follows, let’s just say, not a fair-reading model of constitutional interpretation but rather the fair-weather model of constitutional interpretation. An undeniable example of this is the weird rewriting of the Eleventh Amendment by the conservative five members of the Rehnquist Court, including Antonin Scalia and Clarence Thomas, during a roughly-10-year period beginning in the mid- 1990s. That Amendment reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In a series of Supreme Court opinions, the Fab Five of that era, effectively rewrote the Amendment to read:
The Judicial power of the United States or of any state shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or against one of the United States by Citizens of his or her own State, or by Citizens or Subjects of any Foreign State.
The immediate purpose and effect was to broaden exponentially the legal immunity that states and, under some circumstances, state officials have from liability for violations of constitutional and statutory civil rights and for personal injury. But that line of opinions was only one part of a blatant and aggressive restructuring of federal jurisprudence by the rightwing legal community, via its judicial contingent, that used what is known as “subject-matter” jurisdictional (i.e., legal authority of a court to hear that case at all), quasi-jurisdictional, sovereign immunity, so-called “qualified immunity,” and other procedural rules—many of these entirely Court-created legal “doctrines,” others a de facto rewriting of constitutional provisions and federal jurisdictional or other procedural statutes—to deny threshold access to in order court to try to vindicate substantive constitutional rights.
Except, of course, in order to vindicate the specific constitutional rights that the ideological right really, really cares about. Like Second Amendment rights, Fifth Amendment property rights, and Fourteenth amendment equal protection rights if the person claiming a denial of equal protection of the law is white and is claiming “reverse” racial discrimination. People who claim violations of these rights may not win on what lawyers call “the merits” of their case—a legal term of art that means that there was a decision by the court on the substantive issue itself (e.g., was their a violation of a constitutional right?) rather than a refusal by the court to consider the substantive issue, and instead to dismiss the case on the stated basis of some jurisdictional or other procedural ground. But they usually will gain access to court in order to have their case decided on the merits—on the substantive constitutional claim.
Some of these “doctrines” are, by the Court’s acknowledgment, created by the Court itself, out of whole cloth. The Court, in other words, does acknowledge that it itself is, um, making law rather than just interpreting the law. Or at least it used to. Rehnquist occasionally unabashedly admitted on occasion that he and his colleagues were simply choosing what he said was a “better” policy. Roberts? Not so much.
But the fact remains that denial of threshold access to court is itself the usual mechanism by which rightwing judges and justices control the outcome of cases that claim violations of constitutional and statutory cases. Most of these court-written doctrines are so ill-defined, or so convoluted, that they are entirely malleable—elastic enough to apply in one case and to not apply, or be ignored, in others, depending on whether the constitutional right at issue is one that the Republican base loves or instead hates.
So, when I read the above quote in Lithwick’s article, I said to myself: Well, actually, these days judging has become exquisitely easy—unless, that is, the particular case, say, pits two large corporations, each of them represented by a high-profile, big-name lawyer, usually a partner at a mega law firm. Or pits the prosecutor’s office against some former CEO or CFO who is represented by a big-name lawyer, usually a partner at a mega law firm. Then, the judge, judges or justices must actually judge—as that word, used as a verb, is billed in middle school civics class and elsewhere.
Otherwise, judging is now simply a formula, one that has nothing to do with a fair reading of the Constitution or of statutes but that has absolutely everything to do with docket-clearing and with aggressively limiting access to court, at least to challenge the constitutionality of a statute, government policy or government act, by someone who is not claiming a Fifth Amendment “takings” violation, religious discrimination, “reverse discrimination, or violation of the Second Amendment right to bear arms—virtually the only constitutional rights that, according to the chief justice and colleagues Scalia, Thomas, and Alito believe trump states’ (and local governments’) rights to violate the constitutional rights of individuals.
An originalist/textualist interpretation of the Constitution’s Supremacy Clause seems to work well for litigants who invoke the constitutional rights at issue in those cases, but only ever so rarely for those who invoke any of the other constitutional rights that accrue to individuals—or that a textualist reading of the relevant parts of the Constitution would seem to suggest, but that apparently do not.
For people invoking those rights, there will always be some procedural flaw—in the way the lawsuit’s complaint was drafted; in legal “standing” to bring the case, or in some other “subject matter” jurisdictional or quasi-jurisdictional respect; or by virtue (so to speak) of the ever-metastasizing doctrines of sovereign immunity and “qualified” immunity. Or in whatever. The stated grounds are just formality, and fungible.
So, no, Justice Souter. And, no, Dahlia. While it’s true that judging never should be easy, these days it almost always is. I mean, how hard is it, really, to look at who the party who filed the lawsuit is; who his, her or its lawyer is—or whether or not that party even has a lawyer (self-representation being a crime inevitably punishable not just by dismissal of the lawsuit but by defamatory and demeaning diatribe); and to look at whether the case presents an opportunity to further Republican Party interests?