The Slate senior editor says Justice Scalia’s philosophy of originalism is a farce – and so is judicial activism
Dahlia Lithwick, a senior editor for Slate, writes about the Supreme Court and the United States’ judicial system . But this isn’t the leaden copy of briefs and summaries. This is jurisprudence for the common man, with insight into the more fascinating consequences of the highest court’s decisions, process and political interference.
On Feb. 25, Lithwick gave the keynote address during the ACLU of Oregon’s Liberty Dinner, arguing that public engagement and resistance to the Trump administration is a key component to energizing the country’s courts system and enabling it to be a meaningful check of the administration.
Before her address, she sat down with Street Roots to talk about the politicization of the Supreme Court, the nomination of Neil Gorsuch, and the role the judicial system will play during the next four years.
Amanda Waldroupe: You’ve said that this is not a typical year for someone who covers the Supreme Court as a journalist. How so?
Dahlia Lithwick: I can carbon-date it. It’s Feb. 13, 2016: That is the day that Justice (Antonin) Scalia died. No one expected him to pass away. Nobody expected that if there was a vacancy, it wouldn’t be filled. I think the 2015 term, which ended in 2016, if Scalia had lived, would have been the blockbuster term for the ages, if you look at the cases that were docketed. They all sort of fizzled into 4-4 splits. And there were several that the court didn’t fully decide.
A.W.: What cases suffered from the lack of a ninth justice?
D.L.: I think the most notable one was the Obama immigration executive action. The court split. The executive action never went into effect. The other big one was what would have been Hobby Lobby 2.0, which would have been a huge religious liberty case. The Supreme Court kicked it back to the lower court and basically said, “Work it out.” There were a whole bunch of other cases we didn’t get to. One person, one vote was on the line in Texas. There was a California case about financing public-sector unions. They all just fizzled.
A.W.: It is unprecedented for a president to nominate a justice for the Supreme Court who was not considered by the Senate, as what happened with President Barack Obama’s nomination of Merrick Garland. What ramifications do you think we will see because of that in the future?
D.L.: I think you will never again see a president get someone seated unless their party controls the Senate. What that means is that every single confirmation hearing will be a hostage situation.
A.W.: And a political situation, which makes the Supreme Court a political ball that gets tossed around.
D.L.: Yep, it’s just a football now. If you look historically, we’ve had nine presidents seat 13 different justices over the years, and in an election year, there’s no precedent for what just happened. As of now, the precedent will be that you can never seat anyone in your third year. By the end of October, you were hearing Republicans like Ted Cruz and John McCain say, even if Hillary Clinton wins, we’re going to go four years without a confirmation hearing. We’re just in a full-on power struggle.
A.W.: Is Neil Gorsuch going to be the newest Supreme Court justice?
D.L.: I think Democrats in the Senate are making a decision about whether this is the hill they want to die on.
I think the thing that happened that stiffened their resolve (on voting against confirming Jeff Sessions as attorney general) was the airport revolution that happened when all the lawyers and all the judges pushed back. They looked around and said, “Holy crap, rule of law really matters to the American people.” I think that really emboldened them to fight the nomination of Jeff Sessions.
I suspect they’re trying to figure out if Neil Gorsuch is going to be worth a filibuster. It is filling Scalia’s seat. It’s swapping out a conservative for a conservative. There’s going to be no net change. So maybe they’re going to be willing to fight another day. My sense is that it has changed in the past week or two. Chuck Schumer is pushing back, and Sen. Richard Blumenthal recently came out and basically said if he doesn’t (publicly) denounce Trump’s attacks on judges, I cannot vote for him. This is new. It’s part of tying Gorsuch to this administration.
A.W.: What role do you expect the Supreme Court to play in the next four years?
D.L.: You happen to be asking the question we’re all asking about Gorsuch himself. We know where his head is on religious liberty and criminal procedure. What we know almost nothing about, because the 10th Circuit Court just doesn’t do it, are his thoughts on judicial power and ruling on the executive branch. We have tiny hints. Some of them are positive and suggest that he might meaningfully check a President Trump. As toxic and hellish as the confirmation process is, those will be four days in which one of the things that should be probed is what do you think are the outer reaches of executive power? What role does the court play in wartime? Getting him to answer some of that is to begin to have an answer to your question. It’s going to have to transcend left and right.
A.W.: The idea of an activist judicial branch is becoming more of an issue, especially because the judicial system has already stopped the Trump administration’s immigration ban. Some could argue that the judicial branch is being too activist; others would say this is the court simply upholding the country’s constitutional values. What do you think?
D.L.: I think “activist” is as trite and silly a formulation as originalism is. They’re at very opposite ends of a very shallow spectrum. Judicial conservatives have co-opted the term.
You have to go back and think about what the job of the judicial branch is. Is the judicial branch meant to rubber stamp everything the president does? Is everything Congress passes constitutional? Or do checks and balances have real force and meaning? If so, every once in a while, judges will say, “This is unconstitutional.” The judicial branch is the one branch, by design, that is the counter-majoritarian branch. If you think about all the high-water marks that we think about – Loving v. Virginia, Brown v. Board, Obergefell, Roe v. Wade — it is the only branch designed to protect minorities. If you don’t take that very seriously, then the only thing that matters is what the majority wants.
A.W.: You said that rule of law really matters to Americans. You’ve said before that coverage of the Supreme Court can be a tough sell for Americans, given its tendency to be arcane and wonky. Do you think that’s changed since Trump has become president? Are people going to be more interested in the workings of the judicial system?
D.L.: I think my simple answer, but the true answer, is that 50,000 people listened to the 9th Circuit oral argument (on Trump’s immigration ban) – the most arcane oral argument, basically on civil procedure – for an hour and were riveted. Those people were not listening because they were experts on civil procedure. They really cared. This lawsuit really helped animate what the resistance was going to look like.
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I was saying over the summer, “Merrick Garland isn’t going to confirm himself. Vote.” And people didn’t vote. One of the things that has happened is that having people on the ground, caring, has really energized the judicial branch. Part of the reason the 9th Circuit was able, across partisan lines, to write an opinion saying “no way” is not simply because Trump is digging his own grave with the judicial branch. Seeing people come out to airports and lawyers hunched over laptops trying to file motions (was crucial).
It matters that people care. That’s my feeling about telling people don’t count on the courts. (The courts) have no inherent power or authority. What they have is the capacity to take your outrage and funnel it into something. If Trump says “so-called judges” and “somebody should take out a judge,” unless the public fights, the judges cannot protect themselves.
A.W.: As the Garland nomination was playing itself out, I was surprised that the court didn’t communicate with the Senate in some way and say that the Senate has a constitutional duty to “advise and consent” to the president’s nomination. Why do you think something like that did not happen?
D.L.: There is no mechanism to force the Senate to do anything. There’s no law. It’s a norm. There’s nothing in the Constitution that says, “If the Senate fails to ...” People were shocked.
The really pointed part about your question that is interesting is why didn’t the chief justice (John Roberts) stand up and give a speech? Why did none of the justices, until Ruth Bader Ginsberg popped up in July, talk about it?
The answer is that the justices believe the totality of the court’s legitimacy comes from being above politics. For them to weigh in and say anything would have sounded partisan and political. They just decided to stay above it. That’s why Merrick Garland never gave a press conference; that’s why you never saw him. There was just radio silence.
A.W.: When Gorsuch was nominated, NPR played a tape of Scalia saying , “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” So much of the conversation around who should be the next Supreme Court justice has involved the concept of originalism. Why do you think that concept has so much appeal?
D.L.: I think that the genius of originalism – and this, in many ways, is the genius of Scalia, because he in many ways becomes the iconic thinker and writer about this – is that it’s a philosophy of restraint. It says that judges are not all powerful. But the restraint, says Scalia, is that we can’t vote our whim. We have to be completely true to the words in the text. I think in a country, post Brown v. Board of Education, post-Vietnam, even Watergate, that was very anxious about an unchecked judicial branch, the idea was that judges, as Chief Justice John Roberts put it, are just umpires; “all we’re doing is calling balls and strikes.” It’s that same sort of fake humility. I say it’s fake because of course judges are not calling balls and strikes. What they do is deep and broad and absolutely involves their own interpretations and their own experiences. Originalism is charming. It mollifies people’s anxieties. It’s clever and very enchanting. But it doesn’t do what Scalia would have said it did.
