The Court and the Constitution: The Role of Worldview
Dr. Joseph Russomanno is a professor in ASU’s Cronkite School of Journalism and Mass Communication.
In this week’s Constitutional Conversations post, Joseph Russomanno argues that the institutional credibility of the U.S. Supreme Court is in peril. A primary reason: worldview. As explained below, just as the nation is split according to worldview categories, so is the Court. This results in chasms between methods of constitutional interpretation and in turn, the Court’s opinions. Claims of a politicized Court – that it is now little more than a political institution – gain credibility. This essay is based on Dr. Russomanno’s latest book, “The ‘Stench’ of Politics: Polarization and Worldview on the Supreme Court” (Lanham, MD: Lexington Books, 2022).
Constitutional design is the “playbook” for American government and, in turn, American society. While we may think of the Framers as the original architects, subsequent generations assumed the responsibility of design interpretation for the purpose of application. That responsibility has fallen largely on the courts, with the U.S. Supreme Court at the top of the hierarchy as the ultimate playbook referee. Traditionally, the Court’s interpretation of the Constitution occurs through one of two primary lenses, originalism or living constitutionalism. In short, the former subscribes to adherence to the Constitution’s text and its meaning at the time of its ratification; the latter acknowledges that as the nation and world evolve, so should the understanding and application of the Constitution, adapting 18th-century language to 21st-century reality.
Therein lies a source of division, both of nation and its highest court. Viewing the world differently – very differently – results in fissures, some wide and seemingly irreparable. The split, however, transcends constitutional interpretation and extends to social (dys)function. This is especially apparent when the concept of worldview is considered.
Worldview is an orienting framework, possessed by everyone, that governs how the world and its phenomena are perceived, and how each of us reacts to them. A specific worldview is both hardwired and learned, and profoundly explains not just how we sense the world, but also what we believe about it. Worldview influences not only our politics, but also many choices we make: where we live, the restaurants we frequent, the cars we buy and much more. When we sometimes offhandedly wonder if others are “living in a different world,” the answer may be a resounding, “Yes!” – at least to the extent that their worldviews differ so much from our own.
Worldview helps to explain not only divisions in society, but also those on the Supreme Court. The Court’s justices are no different than other Americans, falling into one of two worldview categories, fixed or fluid. Just as worldview helps to explain how people think and behave, it can also explain how and why the justices approach their work as they do – as originalists or living constitutionalists. “There are two very different constitutional visions,” writes scholar Erwin Chemerinsky. “All [justices] are interpreting the same constitutional text. Their divergence is a result of their markedly different political ideologies and worldviews.”
The Court’s worldview split is part of a growing dynamic adversely affecting its functionality, its role in constitutional design, and ultimately the nation. The consistent conflict that surfaces between the Court’s factions recently surfaced, for example, when two mutually exclusive visions were offered by two different justices – one on each side of the worldview divide. According to one commentator, these views reflected profoundly different understandings of what law needs to do to keep the basic mechanics of democracy functioning. Though uniformity is neither realistic nor necessarily desired, a harmonized view of the nation and its needs would be beneficial.
The two categories of constitutional interpretation and the two categories of worldview intersect. Think of it this way: originalism = fixed worldview; living constitutionalism = fluid worldview. In turn, blended characterizations of the approaches are offered here as fixed-originalism and fluid-living constitutionalism. Recognizing this relationship reveals how and why today’s Supreme Court rules as it does. A key step in this understanding requires further probing worldview and its categories.
While acknowledging that nuance may sometimes exist, it is useful to recognize the traits that typically accompany each worldview category. Those people with a fixed worldview prefer the status quo, or even turning the clock back to previous eras when things were “simpler and better.” Fear is a primary driver, with safety, certainty and predictability prioritized. Closure is valued. Because change is often perceived as threatening, science and scientific discoveries are approached with trepidation, sometimes rejected out of hand. These characteristics often lead to political and social views: border protection, expanded gun rights, limiting voting rights – in short, going back to the way things were to attain safety and predictability.
Those categorized as fluid tend to land on the other end of the worldview continuum. They are flexible in their beliefs, open-minded. They are willing (and even desire) to risk trying new things. Particularly compared to their fixed counterparts, those with fluid worldviews are less innately fearful of difference, a quality that gives them leeway to embrace variety across many contexts. In short, fluid worldview holders tend to embrace a classic definition of progressivism – moving forward, armed with new discoveries, striving to modernize society, institutions, technology, law, policy, etc. with their goals including social justice for all.
On the Supreme Court, a fixed-fluid split is apparent, with the former driven largely in response to the jurisprudence of the Warren Court in the 1950s-60s. Within one week in June 2022, four rulings were announced on cases addressing rights on voting, guns, religion and abortion, respectively. The rulings in each revealed a divide that could not have been clearer. All were 6-3, with the same six fixed-originalists in the majority and the same three fluid-living constitutionalists in dissent. Within each case, it was clear how much the justices reason from their core values, with opinions flowing from their political, ideological and worldview-based principles.
Common threads run through these rulings – unsurprising given that the fixed-originalist worldview playbook is consistently and successfully executed by the usual suspects. Consistent with a method that believes documents have an unbending meaning that was fixed at the time of their creation, the Constitution and its amendments must be applied in the 21st century just as their ratifiers did. Unless a right is consistent with and deeply rooted in the nation’s history and tradition, its survival is doubtful, particularly with a supermajority of fixed-originalists in place. This opens a door to criticism that the majority is stuck in the past, or wants to be, and disregards the challenges and needs of a perpetually evolving contemporary society.
That criticism often originates with the fluid-living constitutionalists on the Court. In their 2022 dissenting opinions, they accused the majority of giving cramped readings to the Constitution’s broad language whenever possible. The dissenters noted that any law explicitly meant to disrupt the status quo (e.g., the Voting Rights Act) signs its own death warrant, as does any right not derived directly from the Constitution’s text, when confronted by the fixed-originalist majority. Instead, the dissenters assert, liberty, equality and justice can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.
The body of evidence supports arguments of preordained case outcomes to achieve political ends. After generations of the Court being used as a political instrument, it should not be surprising that it is now frequently little more than a political institution. The warnings are plentiful, with perhaps the most powerful also being recent: In oral arguments in the case that ultimately resulted in the ruling that overturned Roe v. Wade, Justice Sonia Sotomayor questioned whether the ostensibly apolitical Court could endure the flagrant maneuverings that brought the case to the high court: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
As Americans’ public perception of the Court plummets – largely due to its perceived politicization – its proper role in constitutional design is imperiled. The time is right for a reexamination of its design, from the nomination and confirmation of justices to term limits and number of members. Until then, Justice Robert Jackson’s 1949 admonition about extremism in constitutional interpretation reverberates: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
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