Another Perspective on Supreme Court Decision Making
The Supreme Court’s 2024-25 term has begun. The justices added 15 cases to their docket, including the legality of ghost guns assembled by the user from parts, transgender rights, criminal liability, free speech, environmental regulation and more. Commentators expect that the 6-justice conservative majority will once again rely upon the doctrine of originalism to shape the results of the cases. Originalism for our more conservative justices compels decisions based upon the original understanding of the issues by our nation’s founders reflected in the text they developed and object to the notion of a living constitution deeming that as inviting inappropriate judicial activism.
Another interpretive approach may exist, not at odds with originalism, but rather looks to the process the founders relied upon to arrive at our nation’s constitution. The diversity of the 55 delegates who participated in drafting the constitution represented individual backgrounds and states with vastly different perspectives. Differing on the role of government, the balance of power between the federal government and states, representation based on population rather than divided equally among the states, the need for trade regulation and taxation, the future of slavery….the range of opinions initially appeared irreconcilable.
Yet, after three months of heated debate, compromise was achieved and kneaded into final form. Our founders relied upon two precepts to guide their task, that as a nation we needed a more perfect union and compromise among the delegates and the states they represented was the only conceivable mechanism to achieve the goal.
An enduring legacy of our founders which may guide today’s decisions is both the text they fashioned more than 200 years ago and the process of compromise they embraced.
Scott Fein
Lake George, New York
