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Anthony Kennedy, the longest-serving member of the Supreme Court, has announced that he’ll retire at the end of July.
Kennedy, often a critical swing vote on the court, is a center-right figure who leaned conservative on some issues — particularly First Amendment and pro-business cases. He tended to lean left on other cases, however — like those concerning LGBTQ and reproductive rights.
His replacement will likely look a lot like the previous Trump nominee, Neil Gorsuch, who was an admirer of Antonin Scalia’s “originalist” judicial philosophy — also commonly referred to as “strict constructionism.”
Scalia has become a sort of model for the ideal conservative Supreme Court Justice, and here’s how he characterized his approach to constitutional law at 2006 Federalist Society gathering in Puerto Rico:
The argument of flexibility ... goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.
But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.
Scalia’s philosophy is hard to square with the reality of the constitutional debate. The implication is that the meaning and intent of the framers is perfectly clear, and that judges should adhere rigidly to that. But this view, to put it charitably, is widely contested.
Nevertheless, in the coming days you will likely hear Republican and conservative commentators toss around words like “originalist” and “strict constructionist” to describe the ideal approach of the upcoming nominee.
As my Vox colleague Jane Coaston noted yesterday, conservatives are already suggesting Sen. Mike Lee, a hardline conservative and Tea Party enthusiast, as the most obvious pick.
If the President went with Mike Lee, he'd eliminate the oppo research hits on a nominee, he'd get an obstacle out of the Senate, and he'd make conservatives really happy.
— Erick Erickson (@EWErickson) June 27, 2018
The conservative Heritage Foundation has described Lee as an originalist with a “deep devotion to the Constitution” and added, “his speeches and writings ... reflect a keen desire to restore important constitutional principles, which he acknowledges is a daunting endeavor.”
But what, exactly, does the phrase “strict constructionist” mean? To get some clarification, I reached out to Akhil Reed Amar, a professor of law and political science at Yale University.
Here’s what he told me:
Often the phrase “strict constructionism” is a vacuous label that substitutes for careful analysis. But sometimes the phrase is deployed to do useful analytic-descriptive work. In everyday political discourse, a “strict constructionist” is a judge whose rulings tilt toward the conservative pole of the spectrum.
In more careful legal parlance, the phrase “strict construction” connotes an interpretive approach that reads federal powers narrowly and/or enumerated rights strictly. Thus, a “strict constructionist” disfavors implied/broad federal powers and/or implied/broad rights of individuals.
Methodologically, strict constructionists focus on text and original intent and tend to downplay the following: the meaning of the Constitution as a whole, the gravitational pull of the spirit of modern amendments, precedents that might depart from the Constitution’s literal text, various practical/policy considerations, and modern-day institutional practices of governmental branches and entities.
Note that Justice Antonin Scalia famously said that he did not believe in “strict” construction as such but rather in fair construction that paid attention to context and purpose — construction that gave due weight, for example, to nontextual principles implicit in the Constitution as a whole or underlying a particular clause, principles such as federalism, checks and balances, separation of powers, and the rule of law.
So there are two ways in which the phrase “strict constructionist” can be used — one is political, and the other is legal. The legal meaning is spelled out nicely above. The political meaning is rather simple: a judicial approach that promotes and defends conservative policies.
The next Republican Supreme Court nominee may or not may not be a strict constructionist or originalist in the legal sense, but because he or she will almost certainly align with the political preferences of conservatives, they will likely be one in the political sense.
Thus, when Republicans exalt these terms in general or in defense of their next nominee, know that this is very likely what they mean: It’s about political outcomes, not the Constitution.
