The right Supreme Court Justice for America
By Senator Orrin Hatch
The President will soon announce his nominee to replace Justice Antonin Scalia. The late Justice’s death last year deprived us of a pivotal voice on the Supreme Court, and in recent months, much attention has been focused on how his replacement might affect the numerous important cases coming before the Supreme Court in the near future. The Court’s decisions have enormous impacts on our lives—from the sanctity of human life and respect for religious liberty to the way we use our lands and the choices we have for our healthcare. As we anticipate the President’s choice, we should focus on the proper role of the judge in our system of government to guide the debate in the upcoming confirmation process.
Our nation needs a Justice that respects the role of a judge under the Constitution. There are few greater threats to our democracy than judges who overstep their bounds by legislating from the bench. The Framers understood the dangers of a runaway judiciary unmoored to the law as written, which is why they deliberately created a system of government in which the people’s elected representatives—not unelected judges—make the law. In the Constitution, they defined the judge’s role in unmistakable terms, making it very clear that a judge’s duty is to say what the law is, not what she thinks it should be. In determining the fitness of any nominee, we should look to this wisdom as our guide.
In short, we need judges who know their bounds. Judges who understand that they have no authority to make, change, or “evolve” the law—and who know that the people alone legitimately control the law and the Constitution—will approach their role properly. We need judges who will exclude as much as possible their own views, biases, or agenda from both the interpretation and application of the law.
Unfortunately, past presidents have frequently appointed the wrong kind of judge—judges who do not respect the limits of their power and who interpret and apply the law according to their personal preferences. Rather than follow the law where it leads, they lead the law in the direction they want it to go.
These misguided judges often change the law by stealth, seeming to leave the words of statutes and the Constitution alone while changing their meaning. In doing so, they have expanded the power of the federal government over virtually all aspects of American life. At the same time, they have severely restricted the ability of the people and their elected representatives to decide important questions such as marriage, pornography, or abortion. And by changing the meaning of the First Amendment, these judges have turned religious freedom inside out. They have even endangered these rights by restricting protections for the free exercise of religion.
This approach is wrong and dangerous not because of its results, but because of how it reaches those results. Regardless of whether any particular result produces good or bad policy, the political ends do not justify the judicial means. As Justice Scalia once said: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.”
Many advocates of unrestrained judges will be using misleading clichés or code words such as “mainstream.” There is, however, nothing mainstream about judges who manipulate the Constitution, twist statutes, or otherwise illegitimately impose their own priorities or preferences on the American people. There is nothing mainstream about judges who believe they can remake the law and the Constitution in their own image.
Justice Scalia once warned that if the Constitution’s meaning is determined by judges—rather than the people—the selection of judges becomes a political “hot potato,” a scenario in which “every time you need to appoint a new Supreme Court justice, you are going to have a mini-plebiscite on what the Constitution means.” An impartial judge knows that the Constitution already has a meaning, and that is the kind of judge America needs.
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The Volokh Conspiracy: Sen. Orrin Hatch on the Supreme Court: ‘Activist Justices have rewritten our laws’
President Trump is expected to announce his nominee to the Supreme Court soon. My Senate colleagues and I will then assess the qualifications of the President’s choice and, if we determine he or she is acceptable, confirm the nominee. Replacing the late Justice Antonin Scalia will be a critical moment for our country and our Constitution.
Before our evaluation of the nominee begins, I wish to outline the principles that have guided me in assessing the qualifications of the last twelve Justices appointed to the Supreme Court. These same principles will guide me — and should guide my Senate colleagues and the public as well — in considering President Trump’s nominee. They are not new principles. Indeed, they come from the Constitution itself, which the Founders of our great nation wrote and ratified nearly 230 years ago.
The Constitution establishes a government of limited powers — one that promotes self-governance, is grounded in the rule of law, and ensures a proper separation of powers between three branches of government. Of these three branches, the judicial branch was expected to be — in the words of Alexander Hamilton — “the least dangerous” because it would lack power to control revenue or command the armed forces. Knowing that the Founders intended the judiciary to be limited in scope and influence helps us to better understand the type of judge who should serve on the Supreme Court.
Specifically, nominees to the Supreme Court must have a judicial philosophy of restraint and humility so that they view their role as limited to faithfully interpreting the law. It is not a Justice’s role to make or change laws by imposing his own policy preferences instead of what Congress actually passed. It is not her role to prejudge issues by looking beyond the text of the law to consider her personal views and feelings. And it is not a Justice’s role to choose winners and losers based on subjective beliefs that favor one group over another.
Unfortunately, past presidents have not always nominated Justices who understand their proper role under the Constitution. Nor have my Senate colleagues always focused on these guiding principles, opting instead to assess whether a particular nominee will advance certain policy preferences. As a consequence, we have had to endure activist Justices who have viewed themselves more as super-legislators than as impartial interpreters of the law.
Through their decisions, these activist Justices have rewritten our laws. They have interpreted the Constitution in ways that take power from the people and their elected representatives to make laws. They have also narrowed the meaning of other provisions, such as the First Amendment, in ways that limit the people’s ability to follow their conscience and moral convictions.
Such impermissible “power judging,” as Justice Scalia called it, has changed our laws in ways that give the President and unelected bureaucrats vast lawmaking power that the Constitution vests exclusively in Congress or else leaves to the states. For example, courts have allowed past presidents to rewrite by regulation a number of laws that were enacted by Congress. Our last President even made sweeping changes to federal immigration law by executive memorandum instead of through the legislative process. Four current Justices on the Supreme Court would have allowed such executive overreach.
The only way to prevent such abuses of executive and judicial power is to appoint impartial judges to the court. Unlike activist judges, impartial judges let the law — not their own political beliefs or personal ambitions — pick the winners and losers. To the best of their ability, impartial judges bracket their own biases and let the law decide judicial outcomes, even when they may not like the results that may follow.
In the days and weeks ahead, advocates and interest groups will say many things about the President’s nominee to the Supreme Court. They will want to know how the nominee will decide particular cases before those cases ever reach the Court to make sure the nominee is on the right team. Our nation’s Founders would have been embarrassed by such questions. Instead, the questions we ask should focus on whether the nominee will interpret and apply the law faithfully and neutrally, no matter what the issue is. That is,
after all, what our Constitution demands.
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Hatch to Attend Supreme Court Announcement at White House
Washington, D.C.—At the invitation of President Trump, Senator Orrin Hatch (R-UT), the senior member and former Chairman of the Senate Judiciary Committee, will attend the President’s announcement at the White House of his nominee for the Supreme Court.
Last week, Senator Hatch met with the President in the Oval Office for more than an hour to engage in a wide-ranging conversation on policy issues that included, among other things, a discussion of the President’s choices for the Supreme Court. You can find out more about Senator Hatch’s White House visit by watching this video.
Who:
Senator Orrin Hatch
What:
President Trump’s announcement of a nominee to serve as Associate Justice on the Supreme Court
When:
January 31, 2017 at 7 p.m. EST
Where:
The White House
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