Law & the Courts

We’re All Judicial Consequentialists Now

U.S. Supreme Court in Washington, D.C. (Jonathan Ernst/Reuters)
Harry Reid gives up the game by calling for ‘progressive’ judges.

Since President Trump’s inauguration in 2017, his administration has secured the confirmation of more than 180 federal judges, including 50 now sitting on federal appellate circuits and two sitting on the United States Supreme Court. Whatever his ultimate legacy, Trump can reasonably claim credit for having outpaced every president since Reagan in appointments to the federal circuit courts. The sheer number of circuit nominees installed by the president has secured a Republican-appointed majority on the nation’s twelve federal appellate courts.

Trump’s rapid makeover of the federal judiciary was made possible by then-Senate majority leader Harry Reid in 2013, when Reid famously availed himself of the so-called nuclear option, amending Senate rules to allow most federal judicial nominees to be approved by 50 votes rather than the 60-vote majority that had been required since 1975. At the time, then-Senate minority leader Mitch McConnell had a warning for Reid and his Democratic colleagues: “I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think.”

While Reid is now expressing concern about the state of the judiciary, as well as the fate of future progressive legislation under a Supreme Court with two Trump appointees, he apparently has no regrets about his decision to abrogate Senate rules after watching a Republican-controlled Senate use the opening that abrogation created to install a stable of originalist judges. In a recent op-ed, Reid not only defended his use of the nuclear option in the face of “unprecedented Republican efforts to obstruct Obama’s nominees,” but exhorted a future Democrat-controlled Senate to double down and maintain the simple-majority voting threshold for most judicial appointments. He likewise called for the elimination of the Senate filibuster, which, in tandem with the nuclear option, would ensure future congressional Democrats could “pass big solutions” without regard for the objections of an obstreperous Republican minority. A future Democratic president, he wrote, would be able to choose jurists “who have spent their careers fighting for progressive values” without having to “cater to unreasonable Republicans.”

The nation faces “circumstances that require Democrats to act boldly,” Reid argued. Given the supposed gravity of our current “circumstances,” he claimed that the country can ill-afford a “stolen Supreme Court” that “will invent reasons to gut any effort big enough to deal with those problems.” One cannot help but question whether a former senator who lavished praise on the Court’s ruling in Obergefell v. Hodges is the ideal candidate to lament the breadth of judicial imagination. But I digress.

It is undoubtedly true that both sides of the political aisle have long trafficked in consequentialist rhetoric where the issue of judges is concerned. But Reid’s naked call for jurists “who have spent their careers fighting for progressive values” is revealing; it tells us what Reid and other progressive leaders think the judiciary is for. Progressive thinkers such as Simon Lazarus insist that a good jurist is one who helps to “effectuate—not frustrate—legislators’ operational design.” Judges, in this view, are robe-wearing sophists who provide the intellectual and procedural rubber-stamp to the “big solutions” of Democrats who “act boldly” to meet the demands of the political moment.

This view is, of course, exactly backwards: Frustrating the operational design of the legislature, at least when that operational design is unconstitutional, is the purpose of a coequal judiciary. Perhaps the professed originalism of many Trump-appointed judges is an inappropriate framework for constitutional and statutory interpretation. But at least their originalism functions as a coherent interpretative framework, one that certainly outduels “careers fighting for progressive values” in the cosmic battle for judicial brownie points.

This “big idea” problem has frustrated progressive judicial-advocacy groups, as Evan Mandery of John Jay College of Criminal Justice described in a January article for Politico magazine. While Mandery claims that originalism, “for all its pretenses, is no more than a fig leaf for injecting politics into the judiciary,” he concedes that the originalist’s professed deference to “the original meaning of the Constitution gives the Federalists a deeply appealing claim to a neutral, timeless American tradition.” The lack of a progressive analogue to originalist jurisprudence is something that he claims is “endemic to liberal politics, which tends to traffic in the rhetoric of identity and outcomes,” while conservatives, by contrast, “prefer the language of first principles (which, conveniently, lead directly to their preferred outcomes).”

It might be the case, “conveniently” or otherwise, that a faithful interpretation of the Constitution is, more often than not, aligned with the “preferred outcomes” of conservatives. That would say more about the relative constitutionality of conservatives’ preferences than it would about the ideological self-dealing of their judicial appointments. But instead of litigating the case for or against “originalism,” and wading into the minefields of originalist hypocrisy or the messy moments of nexus between originalism and common-law principles of interpretation, we’d be better off asking Reid and Mandery what alternative interpretative structure they have in mind. Perhaps it’s true that “originalism” is nothing more than a concoction of libertarian oligarchs scheming to stifle the regulatory state. Maybe the institutional progeny of the Powell Manifesto really have infected the judiciary. But what other options are there? Fabricating tenuous jurisprudence in pursuit of “progressive values”?

Elena Kagan famously claimed “we’re all textualists now.” Apparently, Harry Reid would prefer that we all be consequentialists instead.