“There’s significant issues that can be interpreted in different ways,” newly elected Wisconsin Supreme Court Judge Janet Protasiewicz said when asked about her judicial philosophy and personal stance on abortion in a PBS interview this January.
“I tell [voters] you should know my value. You should know my value,” Protasiewicz continued.
On one hand, this may seem like common sense. Obviously legal cases must be considered on their own merits and justices cannot say how they would rule on cases they haven’t seen. However, if our courts are going to make the ultimate decision on consequential issues such as abortion, gun control and immigration, it seems reasonable to ask the potential judges about their stances.
Yet, Protasiewicz’s strategy of sharing her personal positions and values represents a radical shift in the way the American judiciary has operated for nearly the last 40 years. All three of Donald Trump’s Supreme Court picks repeatedly deflected during their hearings when the topic of abortion surfaced, preferring to talk about abstract questions of “textualism” and “super-precedent” rather than the ways restricted abortion would impact women across the nation.
This norm of secrecy and deflection by nominees has its origins in a 1987 Supreme Court confirmation hearing, when Ronald Reagan’s nominee Robert Bork ran into a steel wall of opposition in the United States Senate spearheaded by the Judiciary Committee’s Chairman, a 44-year-old junior Senator from Delaware named Joseph Biden.
Biden took Bork to task for his consistent public opposition to Roe v. Wade, Griswold vs. Connecticut and the inherent idea that the Constitution guarantees any right to privacy at all.
In the end, Bork was soundly defeated with 58 senators voting against his nomination, becoming only the third nominee since 1930 to see his bid for the highest court die in the U.S. Senate. To this day, Republicans accuse Biden of starting the “judicial wars” that have come to dominate American politics. But if Biden shot first, conservatives moved quickly to change their tactics.
Driven by the Federalist Society, “a powerful network of conservatives and libertarians that has a chapter at many major law schools,” the conservative legal movement learned from Bork’s mistake about being too open on unpopular policy issues. Since then, they made it a principle to avoid concrete answers, with nominees instead saying they will avoid “activist” decisions and won’t read too much into the Constitution.
This philosophy, known as originalism, is dominant among conservative legal experts. The late Justice Antonin Scalia, eulogized by the Federalist Society as “among the greatest members of the Supreme Court,” once said the role of a judge was to “interpret the Constitution exactly as the framers intended it.”
Of course, this is not the way our court system operates. The way the founders intended it in 1787, the First Amendment of “freedom to worship” only applied to certain sects of Christianity, the “right to bear arms” couldn’t extend far beyond muskets and African Americans were considered three-fifths of a human being.
To not look beyond the physical document itself would make the document pointless. The Constitution was not meant to be a piece of paper, it was designed as a framework — a framework that has been updated 27 times since its inception and more recently than even the Bork hearings.
Furthermore, suggesting that anyone can be expected to interpret the Constitution independent of their own worldview is just as laughable. In early April, ProPublica released a jaw-dropping report alleging Justice Clarence Thomas had failed to disclose lavish gifts, private jet trips and tropical vacations provided by a billionaire Republican donor. Three more justices helped argue in 2000 that the Supreme Court should stop the critical recount in Florida and declare Republican George Bush president.
The inherent insanity of our judicial norms is not that our judges have political opinions, it's that we expect them not to.
And yet, this framing of “the rule of law” as an absolute construct, totally independent of the judges deciding the law, continues. Just this week, Rep. Alexandria Ocasio-Cortez and Sen. Ron Wyden were ripped and compared to Dixiecrats on the Wall Street Journal’s editorial page for suggesting President Biden should disregard a Texas judge’s ban on abortion pills because another judge in Washington had issued a contradictory ruling.
Democrats’ boldness and willingness to challenge judicial norms is the only way to fix the institutions that are severely out of balance. In 2022, pro-life referendums were thoroughly defeated in every corner of the country, including ruby red states such as Kentucky, Montana and Kansas.
Protasiewicz bet against this traditional wisdom of secrecy and abstraction, trusting that her personal views were the views of the electorate. For this radical honesty, she was rewarded with 61% of the vote and a seat on the highest court in the state.
Yet, the party’s leadership in Washington, led by elderly institutionalists such as Biden and Judiciary Chair Sen. Dick Durbin, have been bafflingly unwilling to challenge our fossilized judicial norms. Biden distanced himself from Wyden and Ocasio-Cortez’s statements, saying his administration would not overrule the Texas judge, and Durbin refused to eliminate a simple procedural rule that has allowed Republicans to slow up the confirmation of numerous qualified judges.
The Wall Street Journal editorial board’s justification for this strictly academic approach to the judiciary is that Protasiewicz, and similar electoral victories across the country, proves that the pendulum is swinging back to liberalism. They described the Texas judge’s ruling as a “gift to the left that could end up aiding a more liberal abortion regime in many states if not nationwide.”
But while judges waffle in abstraction, women will die from denying access to this critical substance. It’s not a theoretical concept, it’s potentially life and death for thousands.
Originalism has never been more than a cover to install radical policies on an unwilling citizenry, and we can never undo those wrongs without emphasizing the fact that they are not the decisions of a majority — just a minority who pushed the limits of institution every step of the way.
Graham Brown is a sophomore studying Political Science and English. He is an Opinion Editor and a member of the Editorial Board. Do you agree that judges should disclose their personal political beliefs? Send all comments to opinion@dailycardinal.com
Graham Brown is a former opinions editor for The Daily Cardinal.
