January 11, 2005


Odds are, George W. Bush will soon appoint a new Chief Justice. More Supreme Court appointments will follow, along with hundreds of lower-court judges. The federal judiciary will soon be Bush Country, a fact that could have larger long-term effects than Social Security reform and the war in Iraq.

Unless something changes, the effects will be bad. Not because Bush's judges and Justices will be too conservative, but because they won't be conservative enough. Most conservative judges today believe in a theory that leads to very un-conservative results -- law that amounts to little more than judges' opinions, concentrated power in the hands of an allegedly all-knowing Supreme Court, and legal rules that reinforce the power of liberal interest groups like teachers' unions. The right has the wrong legal theory.

The theory boils down to three "isms": federalism, originalism, and formalism. The unifying theme behind this trinity is that all are things Earl Warren wasn't. Warren believed in broad Congressional power to regulate the economy and protect civil rights. Modern-day federalists believe in states' rights. Warren believed in a living Constitution that changes with the times. Originalists think the Constitution means exactly what James Madison thought it meant when he wrote it. Warren cared about the consequences of his decisions. Formalist judges follow legal forms and procedures and believe that worrying about consequences is a job for politicians.

All these theories are supposed to limit judges' power, so they can't "make law from the bench," as the President likes to say. But the holy trinity of conservative legal thought does not cabin judges' power so much as hide it. Judging, Scalia-style, is a little like a card trick: the audience's attention is drawn to one hand while the other does all the work.

Read the whole thing. I'm not at all sure I agree with this, but it's interesting how much Stuntz's analysis seems to overlap with what Larry Kramer says in his recent book, The People Themselves: Popular Constitutionalism and Judicial Review, though I think it's fair to say that Stuntz and Kramer are not very close together politically.

UPDATE: Ramesh Ponnuru doesn't like Stuntz's essay. And John Tabin has thoughts about federalism and education.

And for more on originalism, here's a rather lengthy critique of Robert Bork's approach to originalism that I wrote some years ago.