Sometimes identifying an ideal is easier after ruling out alternatives. With the recent expansion of the Utah Supreme Court to keep up with projected growth in the state’s population, two more justices will be added to the Court. The governor will thus be appointing two new justices who must be confirmed by the Utah Senate.
What should these officials be looking for?
Let’s start with a contrast. Yonatan Green has written a new book on the Israeli Supreme Court. In an earlier article, he described the dramatic shift in that Court’s approach to law from traditional notions of judging and legal interpretation. The Court has, he argues, acted in ways that are significantly at odds with principles of self-government. Specifically, the Court has greatly expanded the types of issues it considers. This includes accepting cases outside of disputes about the application of existing laws in legal controversies, to policy judgments about who can be appointed to government positions, and oversight of criminal enforcement. Related to this, the Court has asserted that it is not bound by legal texts but is obligated to consider abstract ideals it reads into the nation’s constitution.
For a period in our nation’s history, some U.S. Supreme Court justices endorsed a similar approach. This has been called “living constitutionalism” because it posits that the text and original meaning of the Constitution can be supplemented by changing values suited to changes in culture and opinion. In one famous formulation, the Constitution is purported to include a “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As criticism of this creative interpretation of the law was increasing, one prominent advocate of “living constitutionalism” urged state courts to adopt a similar approach.
In the 1980s, legal scholars and leaders like Attorney General Ed Meese called for an approach to addressing constitutional cases focused on the original meaning of the Constitution’s text rather than policy considerations or philosophical abstractions. Among other insights, these legal scholars recognized that “if constitutions have abstract meanings that allow ordinary government, including the courts, to alter their meaning over time, then the Constitution will no longer serve” the function of anchoring politics to lessen the influence of “short-term passions and the influence of special interests.”
This originalist approach is consistent with self-government and the rule of law. As one careful legal scholar has explained, “In the American context, the only way to preserve the authority of the people is to understand their commands—as embodied in the Constitution as the people themselves understood those commands.” He quotes Professor Keith Whittington: “‘The ideal of popular sovereignty would be meaningless if others could set the actions of the sovereign aside’ by construing the sovereign’s commands contrary to their original meaning.”
What does all of this mean for selecting Utah’s new Supreme Court justices? As Utah leaders assess prospective judges, they will need to ask about the commitment of those candidates to the constitutional text as understood at the time it was promulgated and about their dedication to the judicial role.
These concepts are related. If courts read abstract concepts into the Constitution, they are more likely to believe that businesses or interest groups should be able to have what are essentially policy matters determined in court rather than directing them to the legislature. This is more likely when courts observe the principle of “standing,” which means that they will only hear disputes where the party bringing the claim is directly impacted by an application of the law that can be resolved by a legal ruling. This keeps judges from being called upon to decide what constitutes good public policy.
Confining constitutional analysis to determining the text’s original public meaning and observing the principle of standing can help judges be circumspect about limiting their work to the duties of judging.
The expansion of judicial power untethered to constitutional meaning is a risk that elected officials must take seriously. The most recent confirmation hearing of a Utah Supreme Court justice suggests that these officials are doing just that.
This bodes well for the future of the Court, but only if the approach is consistently followed in filling the two new vacancies and others that will follow.
