Biden’s Supreme Court Nominee Will Not Be Mired To Textualism, Will Understand Privacy


And just like that, a new page was turned in Washington. The national narrative took on a new angle.

The news this morning was surprising only that it did not wait to be released at the end of June. The end of this term of the Supreme Court.

Justice Stephen Breyer will retire and in so doing President Joe Biden will have his first opportunity to place a justice on the Court. The ideological balance will not change with this selection, but the placement of a justice who understands the foundation of how the law should be viewed in the larger context is simply vital.

It is strongly assumed that Biden will follow through on his campaign promise to place the first Black woman on the Court. That would be historic, and politically sound. But the larger victory to the nation is the fact that any nominee from the Biden White House will not be a follower of the sterile notion of ‘original intent” or its cousin in intellectual laziness ‘strict constructionist’ thinking.

When we placed a ballot in our hands in the fall of 2020 and cast a vote for president many likely did so with the character of Donald Trump top most in their thoughts. While that was clearly on my mind too, my overriding decision, however, was based on the need for solid fact-based and serious jurists for the federal courts and the Supreme Court. That consideration, along with international affairs drives my voting as it has since my first vote in 1980.

Many in the nation cringe, and correctly so when thinking about ‘original intent” or ‘strict constructionist’ thinking.  The main reason to dismiss this way to view the Constitution is that such concepts are nothing less than a slap to the Framers of that document. There is nothing to suggest they wanted to be the final arbiter on an evolving nation. The second reason to find much dismay with constructionism is the way it undermines the moral authority of the courts.

Republicans and right-wing conservatives talk often about reigning in the courts from ‘liberalism’ and in so doing think that then gives them license to enact harsh rulings about the progress of society regarding a whole raft of issues. Using ‘original intent’ as a partisan weapon places a wedge issue into the judiciary and in so doing undermines one of our republic’s major institutions.

To state, as the ‘originalists’ do, that the words of the Constitution do not evolve with time is a seriously flawed idea.  To pretend that the living America of ideas and events does not necessitate a Constitution that bends and adapts within the framework of guiding principles is one of the most bizarre and dangerous concepts that has ever been suggested.  Those who promote such ideas are the American equivalent of the Taliban, who use the Koran in highly misguided ways.  Pragmatic and logical voters understand past decisions made by the court, along with public needs, and expectations, along with the larger values that were implied in the Constitution, are needed to be used by judges when making rulings.

Trying to do a mind-meld with the Framers about software privacy or looking for guidance in their written texts about transgender rights is simply absurd.

History can be a guide as to the dangers of ‘strict constructionist’ thinking. It can also be a guide as to the wisdom of using guiding principles of the Constitution to expand rights and increase the American Dream. The horrendous Dred Scott decision can be viewed as the work of the former, but most of us better recognize the wisdom of the latter as Chief Justice Earl Warren’s tenure outlawed segregation in public schools.

That is why I firmly believe that when it comes to presidential elections we must always be aware of the need for a working modern judiciary.

One of the central issues in the nation is the right of women to have control over their bodies when it comes to abortion. One of the foundations in the 1973 landmark case Roe v. Wade, is the core constitutional principle of privacy. Conservatives rail against the idea that ‘privacy’ is even protected in the Constitution. 

Now, while it is true that the Constitution does not mention the right of privacy, over time there has been recognition that privacy is an unenumerated right.  The Griswold Case is one that every high school kid learns about; as it was the first time that the Constitution protects that vital right to privacy.  In that case, it was about the right to contraceptives.  In 1973, the issue of privacy was a central argument and focus, as it was in the famed Lawrence v. Texas, where privacy was used to strike down a law against gay sex.

The nation’s attention is now to focus on one way we judge the legacy of a president. The selection of a justice for the Court. We can be most confident that with President Biden the eventual nominee will have a firm understanding that the Constitution is a living document.

That is after all, why we vote for a Democrat to sit in the Oval Office.

And so it goes.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s