The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.
Merrick Garland, President Obama’s nominee to the Supreme Court, has been touted as a centrist on the court of appeals. Whatever reasons there are to confirm him, that should not be one of them.
First, the centrism of a lower court judge is likely an illusion. He is bound by Supreme Court precedent and thus has limited ability to change the status quo. Thus, he tends to be centrist simply by virtue of his position. To be sure, there are some lawless circuit judges, who do not make a good faith effort to follow Supreme Court precedent, but they are relatively few. And none of these could be serious candidates for the Supreme Court, where a record of reversal and obvious disobedience would be seized on by the opposition.
Ruth Bader Ginsburg was pretty faithful in applying precedents when she, like Garland, was on the D.C. circuit. And she too was praised as centrist. But on the Supreme Court she has led the left on the Court. Some of her rulings and views are in fact outlandish, if not Orwellian. For instance, she would have struck down Michigan’s ban on racial and gender preferences under the Equal Protection Clause. Thus, she would have used a Clause dedicated to racial equality to enforce racial inequality by judicial decree. She has praised the use of law of other nations as an aid to interpreting the United States Constitution. She has inappropriately used her opinions to call for political changes in law that have nothing to do with the organization of courts.
And of course she has been lauded by the left for doing so, now being called the notorious RBG. She has received an honorary degree from every Ivy League institution that gives honorary degrees, whereas sitting conservatives on the Court have never received any such degrees. And this is a second reason for discounting centrism. Our legal, academic and media culture provide incentives for “centrists” to move one way—to the left. With Souter, Blackmun and Stevens, we have seen this movie before and there is no reason to watch a rerun.
Finally, and most importantly, the appeal to centrism buys into a pernicious view that the Supreme Court is a political court that can and should be measured by its ideology. Whatever the force of centrism, that label has comes from measuring political outcomes, not legal reasoning. We want a lawful judge, not a judge of any particular ideology. In my view, of course, the lawful judge is an originalist judge, one who follows the original meaning of the Constitution, except for circumscribed rules of precedent—a practice that also flows from original meaning. We should be debating Garland’s faithfulness to this ideal, not his alleged centrism.