Immediately after President Trump broke the left’s stranglehold over the judiciary, prominent Democrats began warning against the dangers of a conservative Supreme Court. Shortly before the Dobbs decision Speaker Nancy Pelosi argued that the Supreme Court is “dangerous to families and to freedoms in our country.” However, such criticisms were heard well before the Justices decided to overturn Roe v. Wade. During the 2020 election, for example, then-candidate Biden refused to disavow court packing. Indeed, were they in the majority, Democrats would have no scruples about permanently altering the balance of power in this country.
A common critique leveled against the Justices is that they are supposedly radical conservatives. This is an odd criticism given that the Supreme Court was clearly liberal for the past 60 years. In the eyes of the left, however, judicial decisions are nothing more than an extension of one’s ideology. They see justices as issuing opinions, purely based on their liberal or conservative leanings. Thus, when a Justice doesn’t adhere to left-liberal orthodoxies, leftists seek to use their political power in order to intimidate and alter the Court. However, a more helpful framework for examining the Supreme Court comes from judicial philosophy rather than political ideology.
Judges who are labelled conservative typically adhere to the philosophy known as Originalism. Indeed, every “conservative” Supreme Court Justice is an Originalist. Judges who subscribe to the Originalist method of Constitutional interpretation generally attempt to uphold the original meaning of the Constitution. The late Justice Antonin Scalia, the theory’s most famous proponent, argued that “that the provisions of the Constitution have a fixed meaning, which does not change (except by constitutional amendment): they mean today what they meant when they were adopted, nothing more and nothing less.” Thus, Scalia believed that the individual whims of judges should be as limited as possible. Rather than altering the law to fit their own personal convictions, Originalists seek to uphold the original meaning of the Constitution. For this reason Justice Scalia once said that “The judge who always likes the results he reaches is a bad judge.”
Hence, the decision to overturn Roe v. Wade was not made because the Justices are all conservative Catholics who morally oppose abortion (although this may be true). Rather, the Court held that the Constitution never included a right to abortion. The majority opinion demonstrated that “[f]or the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.” The Justices came to the obvious conclusion that the Constitution never enshrined a right to abortion.
Anyone who reads the Constitution with a shred of intellectual integrity could come to this conclusion. Indeed, even those who hope to legalize abortion should recognize that the Constitution says nothing about the issue.
Far from arbitrarily implementing their own views, the Originalist Justices sought to uphold the rule of law by adhering to the original meaning of the Constitution.
On the other side, however, liberal Justices are clearly engaged in a project of ideological change. These judges reject Originalism and are broadly grouped as Living Constitutionalists. Although Living Constitutionalists come in different varieties, they all argue that the Constitution changes over time. Thus, a Constitutional provision that means one thing today can mean another tomorrow.
Professors and judges often couch this view in poetic jargon to make it more palatable. While arguing against Scalia, for example, Harvard Law Professor Laurence Tribe, said that “‘the Constitution’ speaks across the generations, projecting a set of messages undergoing episodic revisions that reverberate backward as well as forward in time.” While amendments may alter the Constitution, it certainly does not project alternative “messages” that “reverberate.”
Living Constitutionalism opens the door to rampant bias because judges inevitably interpret the Constitution as changing in a manner that fits their ideological preferences. Thus, liberal judges always argue that the Constitution becomes more liberal over time. Living Constitutionalism destroys the rule of law by giving precedence to the will of judges over the actual meaning of the Constitution.
Indeed, a brief survey of the judicial landscape demonstrates that leftists project their own pathologies onto the Supreme Court. For the last 60 years, liberal Justices have placed their own priorities above the law. The “conservative” justices are merely reversing this trend.