Back before G.W. Bush nominated the excellent John Roberts for the Supreme Court, many conservatives had another name at or near the top of their wish-list: Alice Batchelder, judge (now chief judge) on the U.S. Sixth Circuit Court of Appeals. (She was, as I recall, my second choice, with Sam Alito as my top choice. Of course, I have been very happy with John Roberts as well.) Last night at the Heritage Foundation, those assembled could see exactly why she was rated so highly.
The event was Heritage’s annual Joseph Story lecture, named after the brilliant and principled Supreme Court Justice appointed by James Madison. Batchelder effectively created a “debate” of ideas (albeit expressed more than three decades apart) between the Anti-Federalist of the ratifying period named “Brutus” (likely Robert Yates) and Story, as to whether or not the Constitution left too much leeway to judges to assume too much unchecked power. Story, whose own jurisprudence was of what we conservatives now would call “originalist” or “textualist” and who himself never would have overstepped proper bounds, argued that the judiciary overall would not exceed its bounds either. In doing so, he may have been projecting his own virtues onto future justices; what Batchelder argued was that Story was less able a prognosticator than he was a judge. Clearly, she said, Brutus’ warnings proved right — not, mind you, that the Constitution read correctly allows for power-wandering judges, but that its protections against that evil are not strong enough to block judges from straying.
It all made for an interesting situation where the Story lecturer was arguing against Story’s position on a particular issue (although certainly not against his jurisprudence). It was fascinating stuff.
Without ever coming close to overstepping a current judge’s rightful bounds of opining on pending or possibly pending cases, Batchelder provided examples aplenty of how judges have indeed strayed far afield from the Constitution as those like Story understood it. Perhaps most ironic was that the very arguments used by the high court in the Casey abortion decision to justify an expansive conception of jurisprudential authority, namely that it is not the job of the government to “mandate” a “moral code,” runs afoul of the reasons originally given for expanding the Constitution’s “Commerce Clause,” which was that Congress had every rightful authority to prohibit commerce undertaken for “immoral purposes.”
Anyway, I’m getting into the weeds here, which may not be the right forum for doing so. Much more deserves to be written about Judge Batchelder’s wonderful speech later, and we should eagerly await Heritage’s publication of it in text form. I’ll be sure to let readers know when it is available.