Elena Kagan needs to talk honestly about what Supreme Court justices really do.

The law, lawyers, and the court.
June 23 2010 12:09 PM

Constitutional Interpretation? There's No App for That.

Elena Kagan needs to talk honestly about what Supreme Court justices really do.

(Continued from Page 1)

Sorting through ambiguous text isn't the only difficult task Supreme Court justices deal with daily. Often, the text is clear but it conflicts with other—also clear—text. The Constitution protects a variety of different values—personal liberty, equality, due process, and federalism, to name just a few—and, as Justice Souter reminded us, the justices must figure out what these values are and how to weigh them against one another when they are in conflict. If a state allows parents to use state-funded vouchers to send their children to religious schools, is that constitutionally required to promote their free exercise of religion or is it prohibited as the establishment of religion? The Constitution doesn't say. Do the First Amendment rights to freedom of speech and press give citizens the right to attend a criminal trial or do the rights of the defendant to a fair trial let him close the courtroom to spectators? The Constitution doesn't say. Does the president's role as commander in chief of the armed forces permit him to unilaterally send troops into a battle or does Congress' power to "declare War" mean it must be involved, too? The Constitution—say it with me now—doesn't say.

Even when the Constitution does say things clearly, every justice sitting today accepts that it doesn't always mean what it says. No current justice (and practically no justice ever) has treated the absolute language of the First Amendment, for example, as a complete prohibition on the government's ability to regulate speech. Really, how could they? If they did, laws prohibiting perjury, treason, defamation, and child pornography would be unconstitutional. But once a literal reading of the text is abandoned, it all becomes a murky mess. Is obscenity speech? Is flag burning? Are political contributions? Then there are constitutional questions that are simply novel: If the government uses a thermal imaging device to search your home from the skies above you, is that a warrantless search? The Constitution is even sneaky at times, hinting of unnamed rights that are "retained by the people" (Ninth Amendment) and of powers "reserved to the States respectively, or to the people" (10th Amendment). But just what are these mysterious rights and powers, and where do they fit in?


And this is when the justices earn their keep. They go to work, pulling the tools from their bags and trying to figure out what they can about the meaning of the constitutional values at stake and how to prioritize them when they conflict. This is not the same as a rogue justice just making up the law, but it can and does result in different outcomes depending on the justice's technique, constitutional values, and the facts of the case. This is why we require them to explain their thought processes to us in writing, when they produce opinions. When the explanation makes sense, the decision is publicly accepted and followed by future courts. When the logic is weak, there is public skepticism and the opinion is susceptible to being overturned in the future.

The job of judging is hard, but the job description needn't be. Kagan should trust the American people's ability to understand that eventually the law runs out and it is the justices who are tasked with filling in the missing parts. So, yes, there is an art to judging, but that doesn't mean judicial anarchy. It's a difficult job that requires uncommon intelligence, deep knowledge of the law, an adherence to logic, a drive to be true to the Constitution's values, and the honesty to acknowledge when those values conflict. The law-to-facts view on judging sells the idea that the Constitution is simple, but it's not. It's better than simple. It's a beautiful, intricate document that cannot be interpreted easily, or by anyone who reads English. This isn't a matter of conservative versus liberal or of originalists versus nonoriginalists. This is simply what justices do—every single one of them. By all accounts, Kagan is a superb teacher. And this is a rare teaching opportunity for an important lesson on which we desperately need a refresher course.

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