Five conservative justices now dominate our Supreme Court—Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito. They continue to revise our historical constitution and two new cases show that the arguments they offer continue to be embarrassingly bad. One concerns contributions to religious schools; the other, public financing of elections. I will describe those cases and defend that criticism, but it might be well to notice, first, why the justices have had to resort to arguments of such poor quality.
We cannot accuse these justices of ignoring the plain meaning of the Constitution. The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.
But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. It is essential to the rule of law that they accept the constraints as well as the responsibilities of the jurisprudence of principle. They must rely only on principles that they honestly think provide a persuasive justification for our actual constitutional traditions. They must set out the principles on which they rely in their opinions transparently; and they must apply those principles consistently across all the cases that come before them. They must not invent arbitrary exceptions when these principles yield results they find uncongenial. Unless justices accept those constraints, they are only unelected politicians.
A justice may believe, as a matter of personal conviction, that a decent, morally responsible government will help to finance and otherwise support religious education, training, and practice. He may also believe that the policies of the Republican Party are best suited to the prosperity and happiness of our country, and that Republican presidents, advised by Republican senators, are most likely to appoint future Supreme Court justices who will serve the nation well. These are not outrageous opinions: they are held by many millions of honorable people. But of course it is not possible to suppose that they are a suitable guide to interpreting or applying the Constitution. On …