In the third Presidential debate, Clinton and Trump essentially repeated their thoughts about what they want in a Supreme Court nominee.  But, as their answers indicate, they were asked the wrong question.  What we must demand of anyone appointing a Supreme Court Justice is, specifically, where do their views of the Constitution depart from their own political opinions.

In answer to the less pointed question they were asked, Trump again invoked his love affair with the Second Amendment (“and all amendments”) and then made some largely contentless statements about the respectability of the Justices he wishes to appoint.   Clinton reiterated that she wants someone to “not reverse” Obergefell and Roe yet “stand up against” (i.e.  reverse) Citizens United – this time her language evinced some awareness of how anathema it is to rule of law principles and the legitimacy and consistency of the law to overturn precedent simply based on disagreement (especially while simultaneously wishing to insure the longevity of precedent you like).

Clinton did, however, add the complicated yet platitudinous statement that the Constitution represents “all of us.”  If Clinton means that a diversity of views and identities should be represented on the Supreme Court, the most powerful body in our country, I wholeheartedly agree.  If Clinton means, as the rest of her answer indicates, that the Constitution is some sort of populist document that serves the groups of Americans she favors, that’s missing the raison d’etre of the document.  The Constitution is an anti-populist check against short-term majorities undermining individual rights in the name of social welfare, or safety, or even important social justice causes.

The Constitution values, in many cases, the autonomy of the individual (including the wealthy, as the document was partially enacted to protect property rights) over the desires of the group.  The Constitution is what protects us against random police searches that might make us all safer.  The Constitution allowed women to purchase contraception when states (i.e. the people) wanted to ban it.  The Constitution allows schoolchildren to refuse to stand for the pledge of allegiance, even if there would be more national unity if we all just shared the same view of our flag.  Of course, as the popular constitutionalists will rightly point out, there is some equilibrium between political evolution and the judicial interpretation of a abstractly worded document that protects our inalienable rights from being legislated away.  There is room for evolving understandings of how best to manifest our rights.  But we should all be uncomfortable with Trump’s championing of one amendment over the rest, as should we be uncomfortable with Clinton’s communitarian view of the Constitution.

What we should be asking Clinton and Trump, beyond the simplified question of whether the document is living or dead, is how their own political views differ from their analysis of the propriety of a decision.  Judicial methodology is complex – no one variable dominates the algorithm of even the most avowed originalist.  But judges (and court evaluators) should be able to pinpoint places where their own political views diverge from their sense of how the Constitution must be interpreted.  As an example, Justice Scalia, whom I believe was more principled than many give him credit for, was in fact quite liberal on criminal justice issues, based on his expansive view of Fifth and Sixth Amnendment rights.  Clinton’s view that she would uphold Second Amendment rights while allowing for reasonable restrictions comes close, but her nominees owe the public an explanation for how this reflects a constitutional scheme that isn’t simply political expediency.

Each of us has an obligation to answer the same question.  When judging a Supreme Court case, when do you support opinions that diverge from what you would vote for directly?  I can give you some of mine.  I am opposed to the death penalty, because I believe the state should never kill anyone, but I am not yet prepared to call it Cruel and Unusual or an Equal Protection violation (that may change).   I am in favor of campaign finance reform, but I believe banning expenditures on political speech is inconsistent with the First Amendment.  I am in favor of marriage equality, but I think Obergefell should have been decided on Equal Protection grounds, not the dignity-based grounds upon which it hinged.  I cringe whenever I see a swastika, yet I believe that hateful speech is deserving of First Amnendment protections (and, of course, I find clowns creepy, but – as I have previously blogged – but believe that dressing like a clown cannot be banned, even in our current climate). And, on a higher level of abstraction, I think our Commerce Clause jurisprudence should likely be more protective of federalism values, but we must maintain the precedents we have, especially given our national economy (which makes the current interpretation not inconsistent with the text).  Although many of our political views have already internalized constitutional standards, if there are not decisions where you dislike the result but agree with the reasoning, your credibility in assessing Supreme Court opinions is greatly (if not entirely) compromised.

The next step after this question is the why:  how do we interpret the Constitution? What principles should animate judicial interpretation?  How much weight should we put on precedent versus original meaning versus broader, systemic values (such as those articulated in Carolene Products footnote 4).  But the first step, of anyone empowered to interpret a document that can literally overturn democratic will and invalidate statutes (or entire agencies), is to articulate cases where they are not just replacing the document with their own political beliefs, or (and this is an obvious point that cannot be articulated enough) our country will be ruled by a majority of five.