Legalism vs. Realism

As we studied in class and as explained in my video, please answer the following questions about the two general approaches to constitutional interpetation:

1. Legalism

A. Original Meaning – Justice Neil Gorsuch wrote the majority opinion in the recent case, Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020), about whether homosexual and transgender employees were covered by the employer anti-discrimination provisions under Title VII of the Civil Rights Act of 1964. In his opinion, Justice Gorsuch states, “The Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” In this case, it was a law passed by Congress (statute) – the Civil Rights Act of 1964, – that was at issue, not a constitutional provision.

Question No. 1: Explain Justice Gorsuch’s “original meaning” approach to statutory interpretation.

B. Textualism – In the same opinion by Justice Gorsuch, he writes that, “After all, only the words on the page constitute the law adopted by Congress and approved by the President.” He then goes to define some of the words of the statute, such as “sex,” “because of,” “discrimate.” etc. And, he states further when referring to other cases, “At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings.”

Question No. 2: Explain Justice Gorsuch’s “textualism” approach to statutory interpretation.

2. Realism –

A. Ideology – Justice Kennedy in the case, Obergefell v. Hodges, 576 U.S. 644 (2015), which established a constitutional right for same-sex marriage, examined the history and tradition of marriage in society and prior court cases and then stated that, “History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.” And he further writes, “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

Question No. 3: Explain Justice Kennedy’s “ideological” approach to constitutional interpretation.

B. Role of Judge- Judical activism v. Judicial Restraint. Justice Stephen Breyer wrote a book titled Active Liberty (2005) where he described his approach to constitutional intepretation as one that promotes the “idea of democratic participation,” and that the Founders wanted to “create a form of democratic government in which the people share the government’s authority and actively participate in the creation of public policy.” In the case, Nixon Attorney General of Missouri v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), Justice Breyer wrote a concurring opinion (agree with the result of the majority but for different reasons) that the Missouri restrictions on campaign contributions was constitutional and did not violate the First Amendment freedom of speech, because “limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process.” He further writes that the Missouri statute, by limiting the amount of campaign contributions, “permits all supporters to contribute the same amount of money, in an attempt to make the process fairer and more democratic.”

Justice Breyer is using his ideological approach of “active liberty” or “democratic participation” in his legal reasoning. He is also supporting the constitutionality of the Missouri statute that limits campaign contributions. In this way, he is acting with “judicial restraint” by not declaring the Missouri statute unconstitutional. As you book states and Table 1-3 shows on page 37, both liberal and conservative justices strike down laws deemed unconstituitonal. While striking down a law as unconstitutional is considered “judicial activism” associated with liberal justices like Breyer, and not striking down a law as unconstitutional is considered “judicial restraint” associated with conservative justices, this case shows (as does Table 1-3) that judical activism and judicial restraint depend upon the “substance of the law” that is being considered by the judge; and thus, whether liberal or conservative, judges of both perspectives may or may not strike down laws as unconstitutional and it is difficult to generalize and put a judge in one category or another.

Question No. 4: While these categories of “judicial activism” and “judicial restraint” (see page 36) are generally considered true, Justice Breyer’s opinion in the above case, and Table 1-3 on page 37 suggest this belief may not be accurate. Explain this.