Justice Alito: Let Judge’s Be Judges

February 10th, 2011

Justice Alito’s 2010 Wriston lecture given at the Manhattan Institute on 10/13/2010 is available here.  The topic of the speech was the role of judges. Read the entire thing.

Here is the intro:

I have been a judge for the last twenty years, and judging is not an academic pursuit; it is a practical activity.

We practice a craft, and judges learn primarily from experience and from the example of others. So I’m going to try to talk to you from that perspective. The title of my talk is “Let Judges Be Judges.” What do I mean by that? For some time, our country has been engaged in a hot debate about the proper role of judges under our Constitution. The debate rages on today, but it is curious that the contending sides in this debate have had great difficulty articulating exactly what they want judges to do.

It is sometimes argued, for example, that judges should be strict “constructionists.” That was once a very popular phrase. But my colleague Antonin Scalia has argued—quite correctly—that a law “should not be construed strictly, and it should not be construed leniently; it should be construed reasonably.”

Another term that was once prominent was “interpretivist.” There was a time when a number of prominent constitutional scholars identified themselves as non-interpretivists, meaning that they did not think that constitutional decisions should be based on an interpretation of the Constitution in any conventional sense of the term. But the term “non-interpretivist” also appears to have fallen out of favor. Indeed, a law review article published in 2000 proclaimed, “We are all interpretivists now.” So, no more non-interpretivists.

Similarly, there was a time when “originalism,” the theory that the Constitution should be interpreted in accordance with its original meaning, was scorned. Justice Brennan described it as “little more than arrogance clothed as humility.” But about ten years after Justice Brennan’s speech, Ronald Dworkin, who had never previously been identified as an originalist and is certainly not a conservative, said, “We are all originalists now.”

Then there’s the term “judicial activism.” Once upon a time, this was a progressive badge of honor. Now, however, both the Left and the Right seem to agree that this is a term of derision. During the recent confirmation hearings for Justice Kagan, for example, Democratic senators took the opportunity to lambaste recent Supreme Court decisions with which they disagree as “activist.”

And so we have a very strange phenomenon. We have a heated debate about the role of judges but no accepted vocabulary that defines exactly what the fighting is about. This terminological confusion, I submit to you, is not a superficial phenomenon.

Justice Alito discusses economic rights a bit, focusing on the views of Judge Learned Hand (whose first name wasn’t even Learned, it was Billings)!

Since 1937, something like Thayer’s approach has carried the day in cases involving much social and economic legislation. But what about cases presenting issues under one of the provisions of the Bill of Rights or the Fourteenth Amendment? What about laws restricting the freedom of speech? What about laws that discriminate on the basis of race? Thayer’s argument applied across the board. But before World War II, the major constitutional issues concerned economic and social legislation, and therefore application of Thayer’s hands-off approach produced progressive results. During the 1950s and the 1960s, however, the focus of constitutional litigation shifted to noneconomic rights. Should Thayer’s approach be retained in those areas?

Probably the most famous circuit judge of all time said “yes.” This judge was Learned Hand, who sat on the federal bench in Manhattan for nearly half a century. When Hand died in 1961, a front-page obituary in the New York Times called him “the greatest jurist of his time.” Hand was a man of decidedly progressive sentiments. He fervently believed that the pre-1937 Supreme Court had abused its power by striking down economic and social legislation under the due process clause. He agreed with the subsequent decisions holding that such legislation should be sustained if it has any rational basis. And he saw no basis for applying a tougher standard to legislation challenged as violating one of the provisions of the Bill of Rights, which he condemned as a “double standard.”

Alito also diggs into the recent NY Times-Liptak meme about the Roberts Court being pro-business:

Here’s another example. At the end of this past term, the New York Times published a big article about our court under the predictably ominous headline, “Court Under Roberts Is Most Conservative in Decades.” If you read the article online, you could participate—and you can still participate—in an interactive quiz to see “how your views align with the Supreme Court of Chief Justice John G. Roberts.” Participants are asked questions such as: Would you favor or oppose a ban in your state on abortions performed late in the term of a pregnancy, also called partial-birth abortions?”

If you respond that you would favor such a ban, the screen immediately informs you that “you agree with the Supreme Court and most Americans”—73 percent, to be precise. And the pictures of the five justices who voted in Gonzales v. Carhart to uphold the constitutionality of the federal partial-birth abortion statute are highlighted.

On the other hand, if you respond that you would not favor such a ban, you are told that “you disagree with the Supreme Court and most Americans.” Of course, the whole thrust of this question is fundamentally at odds with the traditional understanding of the judicial role. The issue in Carhart was not whether the justices personally favored or opposed a ban on late-term or partial-birth abortions. The question was whether the federal statute violated the Constitution. The New York Times quiz question obscured this critical point.

Here is the conclusion, where Alito claims that Judges should be judges:

While the creator of the New York Times quiz may not appreciate the difference between what the Constitution means and what one might like it to mean, ordinary people still do understand this critical distinction. The assault on the traditional idea of the role of judges began more than 100 years ago. But ordinary people stubbornly hold on to some old-fashioned beliefs, one of which is the idea that the Constitution means something. Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. Asked whether a judge should apply the law as written or do what the judge thinks is fair and just, two-thirds of those polled said: apply the law as written. That’s what we mean when we say that we have the rule of law and not the rule of men.

We need to preserve that idea. Judges are not scientists, and they should not be constitutional rubber stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution. And they should not aim to be theorists or crowd pleasers. Let judges be judges. For if they are not, our legal system as we know it will fade away.