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were shocked.
The really pointed part about your
question that is interesting is why didn’t the
chief justice (John Roberts) stand up and
give a speech? Why did none of the justices,
until Ruth Bader Ginsberg popped up in
July, talk about it?
The answer is that the justices believe
the totality of the court’s legitimacy comes
from being above politics. For them to weigh
in and say anything would have sounded
partisan and political. They just decided to
stay above it. That’s why Merrick Garland
never gave a press conference; that’s why
you never saw him. There was just radio
silence.
are his thoughts on judicial power and ruling
on the executive branch. We have tiny hints.
Some of them are positive and suggest that
he might meaningfully check a President
Trump. As toxic and hellish as the
confirmation process is, those will be four
days in which one of the things that should
be probed is what do you think are the outer
reaches of executive power? What role does
the court play in wartime? Getting him to
answer some of that is to begin to have an
answer to your question. It’s going to have
to transcend left and right.
A.W.: The idea of an activist judicial
branch is becoming more o f an issue, especially
because the judicial system has already stopped
the Trump administration’s immigration ban.
Some could argue that the judicial branch is
being too activist; others wouldsay this is the
court simply upholding the country’s
constitutional values. What do you think?
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D.L.: I think “activist” is as trite and silly
a formulation as originalism is. They’re at
very opposite ends of a very shallow
spectrum. Judicial conservatives have
co-opted the term. Obergefell (which
legalized gay marriage), according to somey
was an activist decision. It really proves
nothing at all other than you don’t like the
decision. Yet, it has such saliency and
resonance right now.
You have to go back and think about what
the job of the judicial branch is. Is the
judicial branch meant to rubber stamp
everything the president does? Is everything
Congress passes Constitutional? Or dp.
sell fo r Americans, given its tendency to be
arcane and wonky. Do you think that’s
changed since Trump has become president?
checks and b alan ces have real forcé’ and
Ark people g o in g to be m ore interested in the
meaning? ! is o , every once in a while, judges
will say, “This is unconstitutional.” The
judicial branch is the one branch, by design,
that is the eounter-majoritarian branch. If
you think about all the high-water marks
that we think about - Loving v. Virginia,
Brown v. Board, Obergefell, Roe v. Wade - it
is the only branch designed to protect
minorities. If you don’t take that very
seriously, then the only thing that matters is
what the majority wants.
A.W.: You said that rule of law really
matters to Americans. You’ve said before that
coverage of the Supreme Court can be a tough
O A H L IA U TH W 1CK,
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workings of the judicial system?
D.L.: I think my simple answer, but the
true answer, is that 50,000 people listened
to the 9th Circuit oral argument (on Trump’s
immigration ban) - the most arcane oral
argument, basically on civil procedure - for
an hour and were riveted. Those people
were not listening because they were experts
on civil procedure. They really cared. This
lawsuit really helped animate what the
resistance was going to look like.
I was saying over the summer, “Merrick
Garland isn’t going to confirm himself.
Vote.” And people didn’t vote. One of the
things that has happened is that having
people on the ground, caring, has really
energized the judicial branch. Part of the
reason the 9th Circuit was able, across
partisan lines, to write an opinion saying
“no way” is not simply because Trump is
digging his own grave with the judicial
branch. Seeing people come out to airports
and lawyers hunched over laptops trying to
file motions (was crucial).
It matters that people care. That’s my
feeling about telling people don’t count on
the courts. (The courts) have no inherent
power or authority. What they have is the
capacity to take your outrage and funnel it
into something. If Trump says “so-called...
judges” and “somebody should take out a
judge,” unless the public fights, the judges
cannot protect themselves.
A.W.: As the Garland nomination was
playing itself out, I was surprised that the
court didn’t communicate with the Senate in
some way and say that the Senate has a
constitutional duty to “advise and consent” to
the president’s nomination. Why do you think
something like that did not happen?
D.L.t There is no mechanism to force the
Senate to do anything. There’s no law. It’s a
norm. There’s nothing in the Constitution
that says, “If the Senate fails to ...” People
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A.W.: When Gorsuch was nominated, NPR
played a tape of Scalia saying, “The
Constitution that I.interpret and apply is not
living but dead, or as I prefer to call it,
enduring. It means today not what current
society, much less the court, thinks it ought to
mean, but what it meant when it was
adopted. ” So much of the conversation around
who should be the next Supreme Court justice
has involved the concept of originalism. Why
do you think that concept has so much appeal?
D.L.: I think that the genius of
originalism - and this, in many ways, is the
genius of Scalia, because he in many ways
becomes the iconic thinker and writer about
this - is that it’s a philosophy of restraint. It
says that judges are not all powerful. But
the restraint, says Scalia, is that we can’t
v o te o u r w him . W e have to b e co m pletely
tr u e to th e w o rd s in th e tex t. I th in k in a
;couh'trsr,posrB row ni v/ISoard o f' JM ucation,
post-Vietnam, even Watergate, that was very
anxious about an unchecked judicial branch,
the idea was that judges, as Chief Justice
John Roberts put it, are just umpires; “all
we’re doing is calling balls and strikes.” It’s
that same sort of fake humility. ! say it’s
fake because of course judges are not calling
balls and strikes. What they do is deep and
broad and absolutely involves their own
interpretations and their own experiences.
Originalism is charming. It mollifies
people’s anxieties. It’s clever and very
enchanting. But it doesn’t do what Scalia
would have said it did.
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