GOP can't sweep Kavanaugh bombshell under the rug
Enough with ‘judicial modesty’
Every time a judge of a conservative bent is nominated to the Supreme Court we hear a catchphrase from supporters, praising his or her "judicial modesty." One envisions Lady Justice fanning herself with a fainting couch in the background saying, "Oh my, as tempted as I am, I just mustn't rule that way, it simply wouldn't be proper." And, of course, by implication any jurist who does not hew to the Federalist Society's view of the Constitution is (gasp!) acting immodestly.
First, let us recognize that there simply is nothing modest about many of the conservative justices' most treasured rulings that struck down laws through novel interpretations. Citizens United bestowed upon corporations for the first time First Amendment free speech rights that allow them to "speak" by spending unlimited sums of money on behalf of political candidates. Heller held that the Second Amendment provides a personal right to bear arms, ignoring that for the preceding 200 years the court had never found that was the founders' intention.
Bush v. Gore used the Equal Protection clause in an unprecedented way to intervene in a presidential election. In Shelby County, the court struck down a key provision of the Civil Rights Act protecting minority voters because, according to Chief Justice John Roberts, Congress was mistaken in thinking that racial discrimination in voting was still a serious problem. Each of these rulings is a judicial dance of the Seven Veils, twisting and swirling language and history around to reach the result that the conservative justices wanted. Indeed, some of these opinions show so much of the justices' naked beliefs, they border on being a judicial striptease.
The point, however, is not that justices should always act "modestly" in the sense of deferring to the legislature or executive branches and that the conservative justices are necessarily acting badly. Rather, the takeaway is that law is ripe with ambiguity and how one resolves that ambiguity is inevitably going to be a value-based decision reflecting a judge's experiences and worldview.
Roberts famously claimed that judges should be no more than umpires calling balls and strikes, but the far more apt analogy would be that of a figure skating judge. Like the law, figure skating has rules about how a skater's performance is to be scored, often very detailed rules, and some skater's scores are easy to determine if they fall on the ice or leave out certain elements from their routine. But in the close cases, even the most knowledgeable skating commentator has trouble explaining why one judge gave a higher score than another, especially when it comes to criteria like artistic interpretation.
We may not like it because we want the law to have certainty, but phrases like "equal protection" or "due process" also are subject to interpretation and are likely to be understood differently depending on an individual's experiences and views.
A person who has been subjected to stops by the police simply because he or she was black may have a very different understanding of what is an "unreasonable search or seizure" under the Fourth Amendment than someone who grew up white in an affluent neighborhood. This ambiguity is not an inherent flaw in the system but instead highlights the limits of verbal expression and the importance of context in trying to apply language often written long ago in very different times.
So let's put to rest the claim of judicial modesty by conservatives, a claim intended to convey a highly misleading impression that conservative justices possess some intangible moral superiority that enables them to better resist the siren song of judicial activism. What we really should be looking for is judicial humility, a justice's recognition that he or she is subject to the same psychological forces and limits of knowledge about historical meaning that affects all of us, even if we don't wear black robes. And the next time someone piously heralds a justice as someone who exudes judicial modesty and simply calls balls and strikes, imagine them instead in a figure skating outfit ice dancing to The Flight of the Bumblebee - that image will get you far closer to the truth of judging.
Scott Sundby is a law professor at the University of Miami.