Myths and Facts About Courts and the Constitution

For decades, conservative judges, scholars, lawyers and activists have trumpeted “originalism” as the touchstone for how the U.S. Constitution should be interpreted. Under their approach, which would strictly constrain our understanding of the Framers’ grand undertaking, the Constitution becomes a simplistic code of rules easily applied, as Chief Justice Roberts famously stated in his confirmation hearing, like umpires calling balls and strikes. That may work in easy cases, but not in the hard ones - the kind that make their way to the Supreme Court. After all, as the first Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution’s nature “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. … [W]e must never forget that it is a Constitution we are expounding.”
 
This page provides resources on interpreting the nation’s governing document in a principled way that honors the intentions of the Framers to set forth a constitution that could guide the American people for generations to come. 
 
 


Debates have been raging since the founding document’s inception about its meaning and scope, and different interpretive approaches have arisen in response to those debates. How should judges approach cases that don’t allow for straightforward application of technical provisions? What principles can they rely upon when interpreting the Constitution so that they remain faithful to the values it espouses and respectful of the judicial role in our constitutional order? How can we understand the Constitution’s commands in the face of challenges the Framers couldn’t have imagined? 

 
Issue Brief
 
2010 Harvard Commencement Speech
 
 
“The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.” -  retired U.S. Supreme Court Justice David Souter
 
 
 
“Our Constitution retains its vitality because it has proven adaptable to the changing conditions and evolving norms of our society.”
 
It's Alive
 
 
 
 
“Our constitutional system, without fully realizing it, has tapped into an ancient source of law, one that antedates the Constitution itself by several centuries. That ancient kind of law is the common law. … [T]he common law is built on precedents and traditions that accumulate over time. Those precedents allow room for adaptation and change, but only within certain limits and only in ways that are rooted in the past.”
 
Pamela S. Karlan & Nicholas Quinn Rosenkranz on Constitutional Interpretation
 
 
 
by Laurence H. Tribe, Pamela S. Karlan and Karl Thompson
 
 
“The framers conceived the Constitution of the United States as a basic charter, marking core principles and general outlines that would be elucidated over the years, enabling succeeding generations to meet the new and largely unforeseeable challenges they would face.” - Laurence H. Tribe, Foreword
 
Text, History & Principle: What Our Constitution Means and How to Interpret It

 



The term “judicial activism” is often used inexactly to denigrate judicial opinions with which the speaker disagrees. Historically, it has been used to tar liberal judges, but a close examination reveals that in recent decades conservative judges have been more likely to fit the “activist” label.

Hearing of the Senate Judiciary Committee, Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts—With Prejudice: Supreme Court Activism and Possible Solutions
Neil S. Siegel testifies before the Senate Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts regarding "Supreme Court activism." 
 
 
“We, as a people, have always disagreed about some basic questions of federal constitutional law. I would not use the term activist, because activist, as it is used in current discourse means, ‘I very strongly disagree with the decisions.'" - Neil Siegel
 
Issue Brief
 
 
Judicial Activism Then and Now
 
 
 
Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice John Roberts
 
 
 “Time after time, the conservatives of the Roberts Court have shown they hold the core conservative doctrines of originalism, judicial restraint, respect for precedent, federalism, and respect for the will of Congress as mere doctrines of convenience.”
 
The Roots of Judicial Activism
 
 

Following the Supreme Court’s 2014-2015 Term, some reporters and pundits pointed to decisions advancing marriage equality and upholding a significant provision of the Affordable Care Act as evidence that the Roberts Court is becoming more progressive. Many other experts, however, suggest otherwise. 
 
What Was the Question? 

2014-2015 Supreme Court Review
 
 
"I want to resist the question – that’s the way it has been put in the press, and I think it’s wrong. I think what I happened this term … is the modern regulatory state got a big shot in the arm. The modern regulatory state is here to stay, and I think even extremely conservative justices are now internalizing that in the way they think about Supreme Court doctrine." - William Eskridge, Jr.
 
Has the Court Turned Left?
by David Cole 
 
 
Is the Supreme Court Going Liberal?
 
 
Sorry, Liberals, but the Roberts Court Is Still Conservative 
by Pema Levy
 
 
 
Roberts at Ten
The Constitutional Accountability Center's in-depth analysis of the Robert Court