From where I sit, most Americans may miss the real importance of appointments to the Supreme Court, and get caught up instead in political debate. The culprit which is adding to the confusion, consternation, and hysteria is a simple word: “Conservative” And all manner of people on both political sides are using it inappropriately, in my humble opinion, with regard to Justices on the Supreme Court.
More often than not, you hear pundits say, “He is appointing conservative Judges.” The problem is that in the judicial community, I believe most jurists know what that term means. But, to the general public and people who are caught up today in the political firestorm engulfing our nation, there is a misunderstanding of the meaning of the word in the judicial context.
In the world of politics, conservative and liberal have distinct meanings relevant to the philosophy of those who call themselves one or the other. Since we are in a never-ending, politically-charged, 24/7 tsunami of political opinion and positioning in this campaign season, the viewer or reader –on a stimulus-response basis–reacts to the word “conservative” in the political sense. And they get scared, angry, thrilled, or whatever other emotion comes up, based upon how they feel about political conservatives.
But, I believe in the judicial community, they will use the term “originalist” or “constitutionalist” to refer to justices whose judicial philosophy is that the Constitution is the anchoring document and all evaluations and court decisions should be based upon the original intent of the Constitution and the Founders, as best we can interpret it based upon original writings etc.
Using that term brings the debate where it should be–into whether our laws should be based upon the Constitution, and what the original creators envisioned in order to create a free and lasting form of government, or whether one wants to have the current trends of the society dictate how laws are to be interpreted and/or overturned. One is an anchor, a foundation upon which to build forward. One is a changing document, with decisions floating in the current sea.
We could debate that. Personally, for me, I wouldn’t trust the future of your children or grandchildren to the inhabitants of the swamp today, and the lobbyists who dictate to, and entice, them. That is way to “situational” an existence for my tastes, and I believe ultimately leads to mob rule and totalitarianism.
But, that is not my point. The debate should be in the judicial realm, but it is in the hyper-charged political realm because of the sloppy use of the word “conservative.” People’s reaction to that word can cause the politicizing of the court. or so they fear. So, they carry their entrenched political philosophies into the mess, and then wonder how the Judicial Branch has been so compromised. They assume a justice’s political preference will automatically be how he or she will rule. And then, they are stunned when their favorite “political” justice rules the opposite. They feel confused and betrayed.
Words matter. And I think we all, myself included, should discipline ourselves to stop saying Conservative Justices, and put the word Originalist Justices in its place. That alone should interrupt the stimulus-response nature of people’s reactions. It should cause people to pause, look at the term and ask themselves, “what does that term mean?” What is an Originalist judge? Do I think that is a good idea?”
It should help preserve the integrity of the Supreme Court, and leave justices free to hold their own political beliefs, and yet be free to adhere to their judicial philosophy–and in most cases not to make decisions on their feelings or emotions, but on the foundational Constitution and subsequent precedent law.
Just a thought. And a question or two for you: Who has a vested interest in conflating politics with justice, and steering us away from the judicial philosophy debate, leaving us mired in our political fears? Who wants you to doubt the integrity and independence of the third branch of government, rendering it impotent?
I’d love to hear from you.