Read Online First Among Equals by Kenneth W. Starr - Free Book Online Page B
Authors: Kenneth W. Starr
Tags: CUR005000
Ads: Link
from the middle has never been more evident than in the Court's recent affirmative action decisions, where, having previously joined majorities requiring strict scrutiny of racial preferences, she became the critical fifth vote on the Court for the proposition that diversity in the classroom is a compelling governmental interest that can withhstand strict scrutiny analysis. Her path to power was simple. Step one: positioning herself at the Court's center—avoiding strict doctrines or rigid, bright-line principles and thus leaving some running room for later cases. That meant, necessarily, rejecting textualism. Step two: being ready and willing to create new law. She was, in short, farther along the common-law constitutionalism spectrum than Justice Kennedy.
In so doing, she moved farther away from the Scalia school, thus triggering some of Justice Scalia's sharpest condemnatory language. He found doctrinal flexibility to be aggravating. But it was not just the conservatives who were upset. At other critical times, as in the June 2000 partial-birth abortion case, she also left her fellow centrist Justice Kennedy suffering in dissent as she engaged in common-law creativity. Just as in the Establishment Clause arena, so too in abortion. Justice O'Connor crafted what became the law of the land. She had fashioned a concept—now governing the law of abortion—dubbed “undue burden.” That is, the state may regulate, but not prohibit (the “core holding” of
Roe v. Wade
), pre-viability abortions so long as those regulatory controls do not constitute an “undue burden” on the woman's right to choose. The origins of O'Connor's test were entirely unclear. A doctrine by the same name, undue burden, existed in a completely unrelated arena: the law of the Commerce Clause. That sort of test, which asks, for example, whether states could impose airbags requirements and the like, seemed far afield from abortion.
Justice O'Connor never supplied a detailed explanation of the test's origins. She did proceed, as time went on, to elucidate what the phrase meant, using such terms as ,
substantial obstacle.
But this was legal jargon. It was an abstract notion, calling for judgment. The question, continually recurring in the abortion cases, is what constitutes an undue burden? No one knows in advance what the justice(s) will decide.
The result of a particular challenge—yes, it's an undue burden or no, it's not—depends entirely on judicial judgment. On the spectrum of decision-making, this is at the polar opposite of relying on the text and structure or history of the Constitution. What really decides the case is the reasoned judgment of the justice. This is upsetting to adherents of Justice Scalia's
A Matter of Interpretation.
To make matters worse for the textualists, that judgment of the justice(s) is not necessarily guided by prior law. This is the creative dimension of Justice O'Connor's common-law constitutionalism. Rather than looking to the wisdom of generations of judges, as a common-law judge would do in weaving the law of contract or tort, in the Justice O'Connor approach
it is the judgment of the then sitting justice that counts.
There is little, and perhaps no, highly developed body of law to guide the judge in his or her analysis. The judge herself is, rather, the reasoned arbiter of competing interests.
This process of judging tends naturally to be highly subjective. And a justice's use of subjective judgment in construing the Constitution maximizes the federal judiciary's power at the (potential) expense of the political branches (or the states).
This way of approaching the job of interpreting the Constitution alarms the Scalia school. To the textualist justice, this judgment-oriented approach to constitutional interpretation represents raw judicial power, guided essentially by the individual justice's individualistic sense of right and wrong. To be sure, the justice may have eminently sound judgment; indeed, the
In so doing, she moved farther away from the Scalia school, thus triggering some of Justice Scalia's sharpest condemnatory language. He found doctrinal flexibility to be aggravating. But it was not just the conservatives who were upset. At other critical times, as in the June 2000 partial-birth abortion case, she also left her fellow centrist Justice Kennedy suffering in dissent as she engaged in common-law creativity. Just as in the Establishment Clause arena, so too in abortion. Justice O'Connor crafted what became the law of the land. She had fashioned a concept—now governing the law of abortion—dubbed “undue burden.” That is, the state may regulate, but not prohibit (the “core holding” of
Roe v. Wade
), pre-viability abortions so long as those regulatory controls do not constitute an “undue burden” on the woman's right to choose. The origins of O'Connor's test were entirely unclear. A doctrine by the same name, undue burden, existed in a completely unrelated arena: the law of the Commerce Clause. That sort of test, which asks, for example, whether states could impose airbags requirements and the like, seemed far afield from abortion.
Justice O'Connor never supplied a detailed explanation of the test's origins. She did proceed, as time went on, to elucidate what the phrase meant, using such terms as ,
substantial obstacle.
But this was legal jargon. It was an abstract notion, calling for judgment. The question, continually recurring in the abortion cases, is what constitutes an undue burden? No one knows in advance what the justice(s) will decide.
The result of a particular challenge—yes, it's an undue burden or no, it's not—depends entirely on judicial judgment. On the spectrum of decision-making, this is at the polar opposite of relying on the text and structure or history of the Constitution. What really decides the case is the reasoned judgment of the justice. This is upsetting to adherents of Justice Scalia's
A Matter of Interpretation.
To make matters worse for the textualists, that judgment of the justice(s) is not necessarily guided by prior law. This is the creative dimension of Justice O'Connor's common-law constitutionalism. Rather than looking to the wisdom of generations of judges, as a common-law judge would do in weaving the law of contract or tort, in the Justice O'Connor approach
it is the judgment of the then sitting justice that counts.
There is little, and perhaps no, highly developed body of law to guide the judge in his or her analysis. The judge herself is, rather, the reasoned arbiter of competing interests.
This process of judging tends naturally to be highly subjective. And a justice's use of subjective judgment in construing the Constitution maximizes the federal judiciary's power at the (potential) expense of the political branches (or the states).
This way of approaching the job of interpreting the Constitution alarms the Scalia school. To the textualist justice, this judgment-oriented approach to constitutional interpretation represents raw judicial power, guided essentially by the individual justice's individualistic sense of right and wrong. To be sure, the justice may have eminently sound judgment; indeed, the
Similar Books
