Edward Whelan is the president of the Ethics and Public Policy Center. As a frequent contributor to National Review’s Bench Memos blog, one of the nation’s most popular legal blogs, he has been a leading commentator on nominations to the Supreme Court, lower courts, and on issues of constitutional law. Whelan clerked for the late Supreme Court Justice Antonin Scalia. He spoke on campus March 30 on “The Supreme Court, the Scalia Vacancy, and the 2016 Elections.”
Do you think that fewer appeals will be made to the Supreme Court as it becomes more of a politicized body of judges?
Well, no, because different parties will have an incentive to get victories from the Supreme Court. I think that the more the Supreme Court seizes an outsized role, the more people will appeal to it to try to get the victories they want that they haven’t been able to get through the democratic processes.
What do you think that Founding Fathers would say if they saw the federal judicial branch today?
I think the Framers would be appalled by the outsized role that the Supreme Court has seized, especially over the last 50 years.
Alexander Hamilton trusted that the judiciary would respect the line between will and judgment. In Federalist 78, he said that if justices don’t respect the line and are just imposing their will, there’s no reason to have a supreme court and the power of judicial review at all. Unfortunately, our Constitution doesn’t really offer any effective remedy against judicial imperialism. I think that the Framers might wish that they had provided one.
The process proceeding now, with regard to Judge Merrick Garland’s nomination to the Supreme Court, is entirely within the bounds of the process that the Constitution contemplates. President Obama certainly has the power to make a nomination. He’s done that, and the Senate has the power to just say no, including by inaction.
At what point in history would you say that this overstepping of bounds began?
Different people can point to different things, in part depending on which of the excesses they view as most objectionable. I would point especially to the Warren Court of the 1960s as the time when things really went wild. It was in 1962 that Chief Justice Earl Warren secured a reliable fifth vote for whatever he wanted to do, and from that point on, the court operated as a roving commission to impose its policy reforms across whatever areas it wanted to.
Today, March 30, happens to be the 58th anniversary of the court’s opinion in 1958 in an Eighth Amendment case called Trop v. Dulles. And it was in that case that Justice Felix Frankfurter, in dissent, asked rhetorically, “Can constitutional reasoning really be so empty?” And of course, the answer is yes. We have seen it now for decades from so-called “living constitutionalists.”
What is your opinion of setting term limits for Supreme Court justices?
I think it could be a good idea in theory, but it’s never going to be adopted in practice, precisely because the Constitution is so difficult to amend. I think we also have to be careful because any reform can have unintended and unforeseen consequences.
Why is there a trend in our society to bypass the philosopher and look to opinion of the scientist for the final say on deciding contentious issues, such as when life begins?
You’re raising the deep problem of scientism, which is the notion that science itself can answer all the great questions, including of morals. That is a huge category error because science is simply incapable of doing that. We should be respectful of all that scientific knowledge provides us without making the huge mistake that science can dictate our values.
Is free will an illusion?
No one lives as though he believes that free will doesn’t exist. Now maybe the determinists would say that their genes are fooling them into thinking that they have free will, but it’s a concept that is completely in conflict with lived experience and ought to be difficult to take seriously.
How do you make a persuasive case for morality in a society where statistics demonstrate it is becoming less and less religious?
The Ethics and Public Policy Center is dedicated to the proposition that it’s important to speak in nonsectarian terms and use a vocabulary that people of good will ought to be able to engage in. That isn’t to deny that for religious people, fundamental beliefs about policy will often have a religious underpinning. For example, my support for laws against murder is a position that I hold ultimately only because of my religious beliefs. If I didn’t have those religious beliefs, there would be plenty of exceptions that I’d be ready to make to the laws against murder.
We have this disturbing new progressive notion that, somehow, people with religious beliefs are forbidden from bringing those beliefs with them into the public square, as though you can sever that which you believe most important, and that, somehow, only those who have a secular outlook are entitled to adopt policies that reflect their views. I think it’s an entirely incoherent approach but it’s one that in an increasingly irreligious society somehow seems to be getting traction. But again, I simply don’t see how any religious person on the vast range of issues could possibly have any position that is entirely divorced from ultimate understandings of right and wrong and the dignity of the human person.
Can you reflect on your experience knowing Supreme Court Justice Antonin Scalia?
Justice Scalia was someone who was deeply dedicated to getting every case right, big or small. He was a brilliant justice with a mastery of language and rhetoric. He was systematic in his approach to legal questions and did his best to make sure that he was applying a consistent, principled approach.
