When It Comes to Judges, 'Pragmatic' Means Unprincipled
How the president reasons that disregarding the rule of law can be a virtue.
By DAVID LEWIS SCHAEFER
MAY 9, 2009
In a front-page story this past Sunday the New York Times offered a laudatory account of President Barack Obama's likely approach to replacing Justice David Souter on the Supreme Court. It was, the paper said, rooted in "pragmatism." The Times used the term to signify the absence of an ideological orientation -- as if the president intends to nominate a judge who will approach each case on the basis of the facts peculiar to it. Who could object to that?
Yet the term "pragmatism" means something quite different when applied to jurisprudence from what it connotes as a description of how statesmen should approach particular issues. American judicial pragmatism originates in the thought and practice of longtime Justice Oliver Wendell Holmes Jr., who mocked the notion of natural rights and held that the very meaning of the Constitution, not just its application to particular cases, needs to be adapted to fit the most "advanced" thinking of the times.
In Holmes's hands, pragmatism was far from a consistent rationale for judicial activism: He used the notion of an inherently flexible Constitution both to uphold legislative regulations of workers' wages and hours -- and, infamously, in the 1925 case Buck v. Bell, to justify the mandatory sterilization of the retarded on the ground that "three generations of imbeciles are enough." Holmes's one guiding principle was the need for government to give way to the forces of ostensibly progressive historical change, and he offered no objective criterion for distinguishing progress from regress.
In a 2001 interview with a Chicago public radio station, Mr. Obama offered a radical view of the Supreme Court's capacity to transform our economic system that illuminates what the president himself evidently regards as a proper judicial pragmatism. He faulted the Warren Court for limiting its effort to defend "previously dispossessed peoples" to investing them with "formal rights" (e.g. protecting their right to vote), rather than addressing "more basic issues of political and economic justice" in American society such as "redistribution of wealth." He attributed this failing to the Court's deference to "the essential constraints that were placed [on our government] by the Founding Fathers and the Constitution." Mr. Obama expressed confidence in the interview that "any three of us sitting here could come up with a rationale for bringing about [such] economic change through the courts."
Interestingly, Mr. Obama's wish to use the courts as an instrument for economic redistribution echoes the views of one of the leading candidates to replace Justice Souter -- Cass Sunstein. In a 1985 article titled "Interest Groups in American Public Law," Mr. Sunstein, a former colleague of Mr. Obama's on the University of Chicago law faculty, called for "vigorous . . . judicial intrusions" into the political process on behalf of such causes as income redistribution so as to overcome the supposed domination of the legislative process by "powerful private groups."
In Sunday's New York Times story, a former dean of the University of Chicago Law School, Geoffrey Stone, recalls Mr. Obama often expressing concern that "democracy could be dangerous," since popular majorities may be "unempathetic" about "the concerns of outsiders and minorities." And "empathy" is the quality Mr. Obama has said he will look for most in a candidate to replace Justice Souter.
The price of what Mr. Obama calls judicial pragmatism or empathy is a willingness to disregard the rule of law, the democratic process, and the Constitutional text in favor of judges' own idiosyncratic notions of fairness. And that is hard to square with the president's constitutional duty to take care that the laws and Constitution are faithfully executed.
Mr. Schaefer is professor of political science at College of the Holy Cross in Worcester, Mass .