Steven Calabresi, cofounder of the Federalist Society and a professor of law at Northwestern University, has an op-ed up over at the Opinion Journal that's worth a read. He discusses what he believes is the correct – and only – litmus test that should be applied to Supreme Court justices: originalism.
I submit that the proper basis on which we should evaluate the court's performance in this term and in the future is not whether it reaches "conservative" or "liberal" results in constitutional cases, but whether it reaches results that are faithful to the Constitution as written and understood at the time of its adoption. Likewise, the test for presidential candidates on the judiciary should be whether they can be trusted to nominate justices who will follow our written Constitution.
The belief that judges and justices should decide constitutional cases on this basis is known in academic circles as "originalism." This approach may seem so obvious that it should hardly need a name, let alone a defense.
Nevertheless, analysis of whether this was or was not what the justices did was strikingly absent from most of the discussion about the court's last term. Indeed, the possibility that judges and justices can even decide cases on the basis of the Constitution as written is the view only of a small, though growing, minority in the legal academy. Originalism is often dismissed either as hopelessly naive or as cynical obfuscation.
Here are a few reasons why, notwithstanding academic skepticism and the desire for the court to reach outcomes that the Constitution will not support, we all ought to hope that the Roberts court and the justices appointed by the next president will be originalists.
For starters, the long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law. This is the way we interpret statutes, contracts, wills and even old Supreme Court opinions.
No leftist ever says of Roe v. Wade: Let's let President Bush's lower-court judges construe that opinion in light of the "evolving standards of decency that mark the progress of a maturing society." Leftists and indeed all non-originalists would be utterly outraged if this were to happen.
Calabresi points out that the next President may appoint as many as four Supreme Court justices. (That is why I have and will continue to point out to conservatives that committing political suicide by running a third party candidate or opting out of the election is a really bad idea.) Sadly, I do not think Calabresi's litmus test stands much of a chance of acceptance by the politicians in Washington. Mind you, he's quite correct. The last thing this nation needs is a court packed with activists who make law rather than interpret law.
