A question of judicial philosophy rests with nominee

The Justices of the United States Supreme Court are frequently described as being members of either the “conservative” wing or the “liberal” wing, but what do those descriptors really mean?

First, the designations are not rigid. A conservative may, for a given case, concur with the liberals, while on another case, a liberal may concur with the conservatives.

However, and as a general tendency, the conservatives will often take an “originalist” or “textual” approach, which means they will look at the letter of the law and the original intent of the founders or the legislature when the law was enacted. Liberals tend to see the Constitution more as a “living” document, one that needs an updated interpretation reflective of contemporary values, mores and standards, even if their interpretation appears to be at variance with original intent or wording.

The court’s most recent appointee, Justice Gorsuch, said a good judge will be capable of making a ruling that is not, in fact, to his or her personal liking, but makes it anyway in fidelity to the wording of the Constitution. The late conservative Justice Scalia did exactly that when he ruled in favor of a person who had engaged in flag burning. On a personal level, he would have preferred that such behavior be criminal, but he was committed to the sweeping command of the First Amendment, and thus ruled that flag burning was protected speech.

The liberal wing of the court is more likely to rule in favor of their own, personally desired outcomes, and then search the text of the law for a Constitutional basis or justification. Some legal scholars consider Roe v. Wade (1973) to have been decided exactly that way, where a 7-2 majority determined that the right to make the reproductive choice of abortion was to be found in the due process clause of the 14th Amendment to the Constitution and was a protected privacy right.

Very few people actually take the time to read Supreme Court decisions in their entirety, but many of those opinions make great reading, especially those that are controversial.

Justice Blackmun’s majority opinion in Roe v. Wade is a terrific read, characterized by not only an extensive history lesson (tracing the history of abortion back to the Greeks and the Romans), but also by his great sensitivity and respect to the sincere and heartfelt convictions held by people on both sides of that contentious issue.

Most of us know only what we have heard or read about Supreme Court decisions, but not having read the actual decision — the majority, the concurring and the dissents — our views are inevitably shaded by our secondary sources. For example, Huffington Post’s, Vox’s, MSNBC’s, or The Progressive’s takes on a decision such as the Citizen’s United case were almost certainly different than what one probably heard on Fox News or read in the Weekly Standard, National Review or the Wall Street Journal.

In the 1980s, when this writer was serving on a local school board, we once asked our solicitor (or consulting attorney) what was meant by a particular section of the Pennsylvania School Code. His answer was, “What would you like it to mean?”

Before we storm the barricades over the newest appointee to the Supreme Court, or any other judicial appointment, perhaps we should ask ourselves how we feel about that school board solicitor’s response, because there, in microcosm, is the difference between the liberal and the conservative judicial philosophies that are and will remain in tension, and our Constitutional future hangs in the balance.

Filko lives in Williamsburg and has taught economics and American government. He can be reached at jfilko1944@gmail.com.

Copyright © 2019, The Virginia Gazette
70°