"The Least Dangerous Branch?"
The State of the American
Report by Betty Sakai
Known for suing government bureaucrats on behalf of citizens, Arizona Supreme Court Justice Clint Bolick discussed the Judiciary and what attracted him to a career as a lawyer. Law he said is the ultimate level playing field. No matter how much money and power you have, when you get to court you get the same opportunity to present your case as the other side. He has worked on issues of school choice, government regulations, and property rights. Discussing the direction the Judiciary may take, he encouraged everyone to remain engaged in the debate both here in California and at the national level. Silicon Valley --of all places in earnest -- should be the epicenter of freedom. No place on earth has prospered more from the freedom provided them. Justice Bolick thanked the Conservative Forum and commended members for their involvement in this organization, hoping they will continue to spread the philosophy of freedom. The President, the Senate, and the court of public opinion, he said, are all involved in the debate over the role of the Judiciary and can be influenced as to the direction this turns out.
Clint Bolick attended U.C. Davis and graduated in 1979 magna cum laude with honors in Political Science, attending law school there and graduating in 1982. His first two lawsuits were as a student when he successfully sued the President of U.C. Davis, and sued the City of Davis. He did this gleefully and went on to win many battles. He was a staff attorney at the Mountain States Legal Foundation (1982-1985), the Equal Opportunity Commission (1985-1986), the U.S. Department of Justice Civil Rights Division (1986-1987), as the Director of Landmark Center for Civil Rights (1988-1991), as Cofounder and Vice President for Litigation at the Institute for Justice (1991-2004), at the Alliance for School Choice (2004-2007), and as Vice President for Litigation at the Goldwater Institute (2007-2016), until Arizona Governor Doug Ducey appointed him in January 2016 to the Arizona Supreme Court.
Commenting on his appointment to the Arizona Supreme Court, Clint noted that he is the 44th Justice, the first that is not a Republican or a Democrat, and he is inked. He has a scorpion tattoo on the first finger of his right hand. He uses this finger to type every paper, every book, every article, and every brief. The tattoo came as a result of his representing the owner of a tattoo studio who stood to lose $25K when the City of Tempe revoked his permit stating they did not want that kind of business there.
Clint Bolick began his career as a Constitutional lawyer. The Judiciary’s role in government he said is to restrain the other two branches -- the only branch capable of holding the other two branches to their limits of power under the Constitution. Acknowledging the framers in the Federalist Papers recognized that a dominating Judiciary could become dangerous if ever it moved to take over the legislative branch and executive branch, Bolick said we take for granted -- but can ill afford to -- a Judiciary committed to the rule of law. In China the purpose of the judiciary is to sustain the regime. The Venezuela Supreme Court moved to abolish the National Legislature. These two examples makes one appreciate our founders for having separated the powers.
There is in the United States a constant battle going on in the Judiciary between those who believe the Constitution is an evolving document [judges interpreting the Constitution to our time] and judges who believe the Constitution lives through its enduring truths and is possible to change only through the prescribed amendment process. What the Constitution is not is a self-amending document.
Justice Bolick said he believes the glass is more than half full and it got replenished with the confirmation of Justice Neil Gorsuch. Reading about two dozen of Gorsuch’s opinions, Bolick said he loved and was inspired by what he read. No matter what the issue was, Judge Gorsuch every single time started with the text of the Constitution or the text of the statute. He credited opposing views, acknowledged that in some cases there might be other outcomes, different meanings and ambiguities. Referring to judges that enforce the rule of law as textualists, Bolick said these judges believe in adhering objectively to the meaning of the legal text. On some decisions the outcome he has produced he would not support as a matter of policy. If the text is clear, that is the end of the analysis, adding that a judge who adheres to the rule of law does not look to instinct or foreign law. A judge that adheres to the rule of law looks at the law because judges are not legislators. One example of this, where the U.S. Supreme Court has affectively changed the Constitution, is the wording “cruel and unusual” punishment being changed to “cruel or unusual” in cases where juveniles have committed murder. The Court stated that it is their instinct that the vast majority of offenders are not irreparably corrupted. This has caused upheaval. States now have to go back over every single case for decades past to determine if the juvenile convicted was irreparably damaged.
Justice Bolick discussed in detail the importance of selecting Justices who will adhere to the rule of law. Considering that tenures of an average of thirty-two (32) years being eight (8) Presidential terms, appointments are a breathtaking legacy. Presidents and Senators are figuring out that the consequence of appointments is high. One can fairly confidently predict how decisions will come down based upon their political orientation.
Justice Gorsuch is the philosophical heir to Justice Scalia. With two Justices approaching their eighties, it is possible President Trump will have the opportunity to nominate two more Justices who will adhere to the rule of law. One exception of late is Justice Kennedy from California who has in the past voted more with the rule of law than he does today. Lately, Justice Kennedy has expressed concerns about nobility and dignity which are wonderful values but are not Constitutional principles. Beyond not adhering to the rule of law, the words ‘nobility’ and ‘dignity’ are not present in the U. S. Constitution and have no clear ascertainable meaning, so are open to interpretation.
Justice Bolick commented that the U. S. Supreme Court is in its 26th year of a fairly conservative Court that has generally hued to the Constitutional text rather than interpreting the text to mean different things. This has had real world ramifications. In no particular order:
In the Q & A Session, Vice President of Programs Erika Ammirati presented questions from the audience. Clint exempted himself from answering questions about cases likely to come before his Court and about politics. He discussed the importance of remaining consistent and intellectually honest, believing in the separation of powers whether or not your person is in charge or not. The hallmark of conservative scholars and constitutional judges is textualism.
Asked about the 9th Circuit Court of Appeals, Clint Bolick said he is in favor of dividing it because it is too large for en banc (full court) reviews and decisions are often competing, conflicting.
Asked how the people can get rid of decrepit judges, he answered short of retirement there is only impeachment.
Asked which law schools are best for getting a job, he said go to the highest ranked school you can possible get into and also the most congenial school because it can be three (3) years of utter hell.
Asked why lawyers in general have so very little respect for the law of the land, he said lawyers concentrate on their area of specialty and don’t give Supreme Court cases much thought. Interestingly, when Arizona’s Governor Ducey was interviewing attorneys for the Arizona Supreme Court, he found many were unable to comment on the Court’s cases. Ignorance is worse than distain. To help change this, Clint Bolick will teach Con Law II at Arizona State University. He wants his students to love the Constitution and love Constitutional law.
Article 5 and the Convention of States has been joined by Jim DeMint. Article 5 is a mechanism people can use to alter the Constitution even though this has not been used since the 1780s. Thirty-eight (38) states would be required to ratify any proposed amendment. The positive aspect is that people will start talking and this will put pressure on Congress.
A bit more complex was his answer to the final question: “What is more important: the perceived intent of the law or the text of the law?” Considering the 14th Amendment guarantees equal protection under the law, if the Court interpreted it according to what the framers meant, we might still have segregation today. Instead the Court rightfully interpreted it in accordance with the plain language of equal protection and the philosophy behind it.
In summary, Justice Clint Bolick had provided a thorough and very detailed presentation. The Forum showed their appreciation with a great deal of respectful applause.
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