Suppose Joseph Story Had Been Right, and Brutus Had Been Wrong?

Robert Alt / October 19, 2011

The Supreme Court’s term has barely begun, and yet speculation already abounds regarding when the Court will hear and how it will decide politically controversial cases such as Obamacare, racial preferences, immigration, and same-sex marriage. Court watchers offer their predictions on the outcomes of the cases, but many if not most simply presume that the justices will decide the cases based on what they individually believe to be good policy, rather than based on any requirement in the law.

Liberal activist judges have given the public reason to believe judging is just policy work conducted in robes. Liberal Justice William Brennan famously said, “With five votes you can do anything around here”—five being a majority of the Supreme Court. And liberal Ninth Circuit Judge Stephen Reinhardt, a judge who issues such radically activist decisions that they are frequently reversed by even the most liberal members of the Supreme Court, boasts about how many of his extreme opinions slip through unreversed, by noting that the Supreme Court “can’t catch them all.”

This, of course, is not how judges are supposed to conduct themselves. Attorney General Edwin Meese explained the proper role of a judge in deciding constitutional questions: “Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was.”

This view was very much the understanding of Justice Joseph Story, who was appointed to the Supreme Court by James Madison. The Center for Legal and Judicial Studies at The Heritage Foundation honors the legacy of Justice Story and his ideals of judicial restraint with the Joseph Story Distinguished Lecture, which is part of our Preserve the Constitution Series. Past speakers have included Judge Robert Bork, University of Virginia Professor John Harrison, and Judge A. Raymond Randolph. This year, we are honored to host Judge Alice Batchelder, Chief Judge of the United States Court of Appeals for the Sixth Circuit.

Judge Batchelder will explore what might have occurred had the Supreme Court throughout its history agreed with Justice Story that “[a] more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles,” and had it not fulfilled Brutus’s warning in the Anti-Federalist that “in their decisions [the Supreme Court] will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the Constitution.”

This year’s Joseph Story Distinguished Lecture will take place on Wednesday, October 19, at 5:30 pm, and will be posted online.