Judge William H. Pryor is on U.S. Court of Appeals for the Eleventh Circuit. I count him a friend and we had dinner last week when I was in Birmingham, Alabama. The Democrats gave him a very hard time when he was nominated by President Bush and he had to serve under a recess appointment until finally confirmed by the Senate. Opponents were most particularly incensed by his sharp public criticism of Roe v Wade . He made the point that a person can uphold laws with which he disagrees, and he had effectively demonstrated that point when, as attorney general of Alabama, he prosecuted the state’s chief justice, Roy Moore, who had defied a federal injunction against that famous “Ten Commandments Monument” Judge Moore had installed in the court house. Judge Pryor got a lot of flak from conservatives on that. Principled arguments could be, and were, mustered on both sides of that conflict, but I think Pryor made the right decision. Responsible citizens do not, except in cases of extreme necessity, directly pit higher moral law against the rule of law on which the common good depends.
Judge Pryor’s confirmation process was frequently marked by viciousness. People who go through this experience¯Judge Robert Bork’s trial being indelibly imprinted on the national memory¯soon learn that it is not really about them personally. The anything-goes attacks are aimed at sending the message to law students, professors, and judges that holding the wrong opinions on hot-button issues is sure death to any hopes of advancement.
Judge Pryor has an essay in Wednesday’s Wall Street Journal (available only to online subscribers) arguing that threats to the independence of the judiciary are much exaggerated. He sagely cites left-leaning judges in support of his position. For instance: “As Justice Stephen Breyer stated several years ago, ‘We run no risk of returning to the days when a president (responding to the Supreme Court’s efforts to protect the Cherokee Indians) might have said, ‘John Marshall has made his decision; now let him enforce it.’”
Pryor writes: “Alexander Hamilton explained in Federalist No. 78 that judges exercise ‘neither FORCE nor WILL, but merely judgment.’ Hamilton’s point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.” It needs only to be added that the persuasiveness of court opinions is not in arguing for one policy preference or another but in persuasively making the case that the courts are honestly interpreting the meaning of the Constitution or the law in question.
Which brings me to another and related occasion this week. Last Monday, the Ethics and Public Policy Center hosted a dinner in Washington to mark the twentieth anniversary of Justice Antonin Scalia’s elevation to the Supreme Court. In the year before “Borking” was invented, Justice Scalia was confirmed by the Senate in a 98-0 vote. (He was the first Italian-American justice, and senators could count the number of Italians back home.) I was asked to introduce Justice Scalia and that was fun. A few folks said the introduction was more like a roasting, but I disagree. In any event, the justice relished it in the good spirits for which he is noted.
What he said was, of course, strictly off the record. But I think I break no rules by saying that I have it on good authority that there is reason to be hopeful about the ways in which textualism and originalism (two key terms in discussions of Justice Scalia’s jurisprudence) are taken more seriously in law schools today than was the case twenty years ago when, if they were mentioned at all, were mentioned only to be dismissed. Textualism means that the judge is to consult the text, not his own preferences or readings of history or societal trends. Originalism means that the original meaning of the text controls. Not, mind you, the original intention of the authors, which is often impossible to discern and is not, even if discernible, the law. For Scalia’s lively exposition of this argument, see his engagement with Steven D. Smith in First Things (November 2005).
When a decade ago First Things started pushing hard on the question of the judicial usurpation of politics, there were those who claimed we were going over the radical edge. The argument our writers were making then and have been making since is a long, long way from being the established wisdom. But there is today, I believe, modest reason to be hopeful. The issue is not the “independence of the judiciary” as that phrase is usually used. In the last half century, the judiciary has been all too independent¯from the law and from the separation of powers established by this constitutional order. With recent court appointments¯and, in the case of Justice Scalia, not so recent¯there is reason to hope that the tide may be turning, if ever so slowly.
Why leave evolution to chance? Now we human beings have the chance to construct a new and improved humanity. If only it weren’t for the obstructionism of “fundamentalist” Christians. Such is the complaint of Lee Silver in a new book, Challenging Nature . For an excruciatingly delightful devastation of Silver’s argument see Patrick Lee and Robert P. George on NRO here .
Along the way, they have a little fun with Prof. Silver’s conspiratorial mindset: “In the end, Silver’s manner of arguing degenerates into a form of McCarthyism. He relentlessly uncovers the Christianity of various lawyers, political figures, writers, physicians, and academics, describing them as ‘stealthy servants of God.’ On his list of Christian ‘fundamentalists’ and individuals collaborating with them (some of whom are Jews) to impose Christian theological dogmas on the entire nation are: Johns Hopkins Medical School surgeon and President’s Council on Bioethics member Benjamin Carson, Oxford University legal philosopher John Finnis, Harvard Law School professor Mary Ann Glendon, Stanford University consulting professor and President’s Council on Bioethics member William Hurlbut, former President’s Council on Bioethics executive director Yuval Levin, and Johns Hopkins Medical School psychiatry professor and President’s Council on Bioethics member Paul McHugh. We wouldn’t be surprised to learn that Silver has a list of 205 card-carrying fundamentalists and their fellow travelers. Perhaps he will ask others, ‘Are you now, or have you ever been, a member of the Christian religion?’”