Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
October 13, 2020 5:29PM

Jurisprudence Questions for Judicial Nominees That Are Actually Interesting

By Jay Schweikert

SHARE

So far, the Amy Coney Barrett confirmation hearings are proceeding in the way most people probably expected. Judge Barrett is confidently and calmly discussing her approach to judging, ably explaining past comments and decisions, and -- in accordance with the long-standing practice of prior nominees -- refusing to give commitments or comments about particular issues or cases. And the Senators are largely using the hearing to make political speeches. Democrats have mostly made policy arguments in support of the Affordable Care Act, criticized President Trump, and asked case-specific questions they knew Judge Barrett would never answer. Republicans, in turn, have asserted that religious liberty is important and asked fairly banal questions that mostly amount to "Judge Barrett, do you agree judges should interpret the law as written, or should they ignore the law and impose their own policy preferences?"

Given this state of affairs, I tend to agree with my colleague Ilya Shapiro that confirmation hearings no longer serve any valuable purpose, and they should probably be abandoned. While these hearings haven't been as bad as they could have been -- Democrats have, to their credit, mostly avoided character-driven attacks on Judge Barrett's faith -- they're not providing any useful information we didn't already know. And given the case- and issue-specific questions that dominate these hearings, I imagine they undermine judicial independence itself, by exacerbating the misperception that judges simply decide cases based on results they like.

This is unfortunate, however, because despite the caricatured nature of the questions both Republicans and Democrats tend to ask, there actually are interesting, challenging questions about judicial philosophy we could be exploring in these hearings. Judge Barrett has given a pretty standard defense of textualism, originalism, and the more general principle that judges should say what the law is, not what it should be. And Senate Democrats, by focusing nearly all their questions on policy arguments for case-specific outcomes, seem to be trying to do everything within their power to convince people that they actually do just want judges to be "super legislators," as it were.

But the reality is, at least at the level of generality that's been discussed so far, Judge Barrett's jurisprudence is typical not just for Republican nominees, but for the entire federal judiciary. It was, after all, Justice Kagan who famously said in 2015 "we're all textualists now," and who said at her confirmation hearing that, with respect to the nature of deciding cases, "it's law all the way down." Basically all judges agree the job of judging is to apply the law as it exists, not to impose their own value judgments, and basically all judges agree the words of legal texts, whether statutory or constitutional, should be interpreted as written, and given their ordinary meaning as it would have been understood by the people that passed it. While these ideas might once have been controversial in the judiciary, this just isn't where the interesting, challenging disagreements among judges actually are today.

So, it's discouraging that Democrats keep asking judicial nominees about case-specific policy issues, but it's also pretty cringey to hear Republicans talk as if judges appointed by Democrats actually embrace the idea that they should be "super legislators," or that simply being a textualist and originalist is enough to resolve difficult legal questions. As it turns out, judges can agree on abstract jurisprudential theories and nevertheless disagree on how to apply them in particular cases. Why? What explains those differences? What makes a case difficult, even for a textualist and originalist? Why are there certain areas where judicial decisions seem to overlap with political disagreements?

These are large, difficult questions, and I don't presume to have a grand unified theory answering them. But if we are going to have judicial confirmation hearings in an era of bitter partisanship, and if we expect those hearings to be at all informative, those are the sorts of questions we should be exploring.

With that framing in mind, here are twelve sets of questions I would ask judicial nominees:

1. The relationship between originalism and stare decisis is one of the most famously thorny jurisprudential puzzles. Almost no one thinks stare decisis is an absolute rule, but almost no one thinks the mere fact that a case was decided wrongly should itself be grounds for reversal. But if application of stare decisis is inherently a contextual, case-by-case, multi-factor question, does that undermine the values of objectivity and liberal legality that originalism is itself meant to ensure?

2. Descriptively, it is far more common for the Court to overrule precedent in the direction of expanding constitutional rights -- e.g., Brown v. Board, Crawford v. Washington, Citizens United v. FEC, Ramos v. Louisiana, Arizona v. Gant, Lawrence v. Texas, and Janus v. AFSCME all reversed precedent to expand constitutional rights -- than in the direction of restricting constitutional rights. Is this distinction something that should, normatively, matter to judges? That is, should stare decisis be relatively weaker for precedent limiting constitutional rights and stronger for precedent protecting constitutional rights?  

3. When the constitutionality of a state or federal statute is at issue in a case, should judges start with a presumption that the statute is constitutional? If so, where does this "presumption of constitutionality" come from? Is it part of the Constitution itself, or is it an extra-constitutional choice judges make about how to decide constitutional questions? And should the strength of this presumption depend at all on the amount of effort the political branches are, in fact, expending to decide whether legislation is constitutional in the first place?

4. When it comes to many provisions of the Constitution, the Supreme Court has created elaborate doctrines for lower courts to apply in resolving cases. Is there a difference between textual interpretation and doctrinal construction? In other words, should judicial doctrines simply reflect the linguistic meaning of legal text, or is crafting doctrine a distinct enterprise from textualist/originalist interpretation?

5. Many constitutional provisions are written at a high level of generality, like "the freedom of speech" or "the equal protection of the law." If the lawmakers that passed such a provision thought a particular practice either did or did not comply with constitutional standards, to what extent is that historical judgment relevant to judicial decision-making today? Or to ask it differently, is it possible for the society of a particular time period to be "wrong" about what an abstract constitutional provision requires? Like, for example, whether the Equal Protection Clause permits racial discrimination in public schools.

6. Even assuming the meaning of constitutional text is fixed when it is enacted, is it possible for that text itself to require an assessment of something like "evolving standards of decency"? For example, the Fourth Amendment's ban on "unreasonable searches and seizures" and the Eighth Amendment's ban on "excessive bail," "excessive fines," and "cruel and unusual punishment" seem to suggest, on a purely textual basis, that the meaning of these provisions depends in part on relative social norms and conditions. How should an originalist approach this sort of constitutional language?

7. Chief Justice Roberts recently stated: "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." And yet, with regard to at least some issue areas -- like federalism limits on Congress's powers or the scope of the Second Amendment -- it seems clear that judges appointed by Republicans and Democrats tend to decide those legal questions in ways that are largely consistent with their appointing parties' policy preferences. What explains that result?

8. One of the textualist criticisms of elevating a statute's "purpose" over its plain text is the idea that legislation is usually the result of compromise between many competing political priorities. Therefore, it is not just misguided, but conceptually impossible to go outside the text of a statute to determine its purpose, because there is no single, over-arching purpose. And yet, certain constitutional doctrines require courts to decide whether laws were adopted with the intent to pursue unconstitutional objectives -- like discriminating on the basis of race. How should a judge go about evaluating whether a particular statute is adopted with an unlawful purpose?

9. When a court holds that a particular provision of a statute is unconstitutional, it has to decide whether that provision is "severable" from the rest of the statute. What source of law determines how courts should resolve these severability questions? Does it raise separation-of-powers concerns for courts to decide whether and how to effectively rewrite statutes after finding a particular provision unconstitutional?

10. Under the "political question doctrine," the Supreme Court has held that certain constitutional questions -- like political gerrymandering -- are inherently political and therefore "non-justiciable" for courts to resolve. What source of law is this doctrine based on? Is it simply an interpretation of the Constitution? Or are judges exercising discretion about what kinds of constitutional questions to decide?

11. What does it mean to say that a constitutional right is "unenumerated"? Is there a fundamental difference between rights recognized under certain broad constitutional provisions (like the right of parents to decide upon the education of their children, protected under the Due Process Clause) and other rights recognized under other broad constitutional provisions (like the right to donate to political campaigns, protected under the Free Speech Clause)?

12. To what extent should the Supreme Court take into account its institutional legitimacy in the way it decides cases? If particular cases before the Court have enormous political or policy implications for the nation, should that fact have any effect on how Justices approach the case? Does it matter whether the legal dispute itself is quite close, with strong arguments on both sides? What if the question is one in which the Court is necessarily exercising discretion, like whether to decide to hear a case in the first place?

Related Tags
Constitutional Law, Supreme Court, Congress, Robert A. Levy Center for Constitutional Studies, Government and Politics, Center for Representative Government

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org