Wednesday, May 27, 2009

 

Judicial Philosophy 101

Now that President Obama has nominated Judge Sotomayor to be the newest Supreme Court Justice, we’ll probably be hearing a lot about judicial philosophy for the forseeable future, particularly the differences between “originalism” and “living constitutionalism.” Unfortunately, even proponents can’t quite agree on exactly what goes into each but generally, originalists contend that the constitution should be interpreted in light of the words’ plain and generally understood meaning at the time of ratification. Alternatively, a living constitutionalist would contend that the Constitution was designed to evolve and adapt to the times. [Full Disclosure: I fall in with the originalists.]

But that all reads fairly dry so perhaps a hypothetical may help to clarify the differences:

Assume a constitutional amendment was in place that said that Congress could pass no law that, should you ever find yourself with the Flintstones, impinged on your ability to “have a yabba dabba doo time, a dabba doo time, [to] have a gay old time.”

As it turns out a couple of guys from out west found themselves with the Flinstones. And, while they admittedly had “a dabba doo time”, they were disappointed when that did not also include a “gay” time…if you catch my drift. So, on the advice of a Yale educated attorney, they sued. Of course, the Ninth Circuit – being the Ninth Circuit - agreed with them and an obviously terrified Fred appealed to the Supreme Court.

For the originalists on the Court, this was an easy case: at the time it was written, “gay old time” clearly meant just a good and happy time; same-sex coupling was never implied. Further, Congress had never passed any laws dealing with our interactions with the Flintstones. Besides, as Justice Scalia wryly noted, if we were to adopt the more modern use of the word “gay”, wouldn’t it be just as logical to construe the word as it is used on “South Park”: meaning "not cool" or "lame”? Fred got four votes for this originalist approach: Chief Justice Roberts and Justices Scalia, Thomas and Alito.

But there were four votes he did not get; the four Justices most prone to living constitutionalism: Justices Stevens, Souter, Ginsburg and Breyer. They began by noting the word “gay” had clearly taken on a new, more multi-culturally sensitive meaning; a meaning that our founding fathers would have gladly adapted…that is if they hadn’t all been “a bunch of straight, white, racist, homophobic, sexist pigs.” These justices were further impressed by the Ninth Circuit’s claim that if Fred et al. didn’t want to provide a “gay old time”, the constitution provided them the amendment process to change the wording. They also note that a right that is not derived at least in part by a federal court decision is hardly much of a right.

In a concurring opinion, Justice Ginsburg took judicial notice of the casting of Rosie O’Donnell as Betty Rubble in the movie version and called on Congress to pass a law outlawing South Park from ever using the word “gay” in a negative way.

So, as has become the norm in this divided court, Fred’s future as the quintessential straight guy was left to the whims of Justice Kennedy. Unfortunately, veteran Court observers advised him that seeing the Justice consult European Union texts was not a good sign…

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