Institutionalism: the plague


Disclaimer: I have very strong views on all of this stuff. I will be talking a lot about those beliefs. Nothing I say is a set in stone way of thinking, and a majority of people actually disagree with me. Do your own research before just taking my side.


I’d like to start with a qualifier- I love the Supreme Court. For a lot of reasons, but mostly because the judicial system is (suppose) to be the only branch of government without politics (Alexander Hamilton). Everything is logical and involves looking past the obvious answer, looking at words and theories and laws and figuring out what they’re suppose to mean. But, it’s not always politics free. And, in my opinion, that is what’s poisoning the Supreme Court. Nine individuals standing as the unbiased deciders of our Nation, the ones we look to when no one else can tell us. But what happens when those people aren’t unbiased? What happens when they have their own personal beliefs, and when they use those beliefs to decide for our Nation? This is what poisons the Supreme Court.


note: not everyone believes that is poisoning the Supreme Court.


To get a grasp of the decision making process of Scotus (Supreme Court), you have to understand a few interpretation theories. These are ways that the Justices go about making decision; what they believe is the right way to interpret the laws. I’ll summarize them as simply as I can.

Originalism: The Constitution should be interpreted exactly how it was written, and the words written in the Constitution should be taken literally. This tends to be a right leaning viewpoint, but left leaning Justices tend to use this point when it benefits them (EX: District of Columbia v. Heller). That is another flaw for another time.

Living Constitutionalist: The Constitution is a living being, and should be interpreted differently as time passes and human culture/values/issues advance. i.e technology, social issues, etc. This tends to be a left leaning view, but it’s not always that easy. Let me give you a rather difficult example:

The Constitution states that the minimum age requirement for President is 35. But this is because when the Constitutional Framers wrote it the average life expectancy was around 50. So by the time someone was 35, they’re close to death. They’re wiser, more mature, they’ve seen most of their lives already. But now the average life expectancy in America is pushing 80. 35 years old is no where near as wise as it use to be. So, do we raise the age requirement to match what the Framers actually wanted? An originalist would say no. The Constitution says 35 and therefore it should be 35. But a living constitutionalist would say that we should raise the age requirement. While it says 35, the lives of Americans have changed over the centuries and 35 does not hold the same weight now that the Framers intended it to. It should be raised. This is a tricky example, but it does a good job at looking at the difference of the two theories.

Textualism (the middle ground): Justices should look to the Statutes (legislative branch) instead, and should read the words of that statutory text as any ordinary member of congress would have read them. Textualism emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. A little bit of both.

These are the three main theories of constitutional interpretation that are adapted by most of the Supreme Court Justices. But there is one more, not necessarily a theory, but more so why we should make those decisions. It is Institutionalism, which is ruling in the direction that will protect Court’s institutional legitimacy & credibility. Not making the Supreme Court look bad. Doing what the majority of American people want in order to keep the Supreme Court in a good light.

Now, don’t get me wrong, this isn’t always a bad idea. I’ll give you an example. Justice Brett Kavanaugh was recently the deciding vote in the majority opinion to allow the CDC to extend the rent moratorium (people can’t be evicted if they can’t pay rent due to Covid). This sounds like a good idea: there was a deathly pandemic and a lot of people lost their jobs, and therefore can’t pay rent. But here’s the catch: the CDC isn’t allowed to make those decisions. They aren’t congress, they don’t have the constitutional bases to make those calls. Yet the Supreme Court decided that even though it was unconstitutional, the CDC would still be allowed to continue the rent moratorium. Why?

Institutionalism. The moratorium was almost over anyways, and Justice Kavanaugh believed that the American people didn’t deserve the be evicted due to the pandemic when it was only a month or two away from ending anyways. So, he tipped the majority. He even wrote in his opinion that he knew it was unconstitutional, but did it anyways to protect the people. Justice Kavanaugh was using institutionalism in his decision making; even though he knew it was unconstitutional, he made the decision for the American people, and to keep the Supreme Court from looking like assholes.


note: he didn’t actually come out and admit that. That’s just my theory on why he did.

another note: Justice Kavanaugh is one of the most right leaning Justices. This isn’t something he’d normally do.


So institutionalism isn’t the worst thing ever, but when does it end? How many times do the Justices get to admit that they are allowing unconstitutional laws to exist? How many times do they get to throw the Constitution away and do what they believe is right instead? There are certain Justices that subscribe to the institutionalism way of thinking more than others. You may think that Institutionalism is more of a left leaning viewpoint. Normally I’d agree with you, but the Supreme Court currently has a few politically conservative Justices that tend to use Institutionalism (Kennedy, Kavanaugh, Roberts). This, even though I’m not a fan of Institutionalism, is how I believe it should be. Justices putting their political views aside when making decisions (even if I don’t agree with the way they are doing it). There should be a difference between a Justices political views and their jurisprudence views.

Jurisprudence: the theory of law.

But what is the difference? Why do some justices put their political views before their views of the law? Most left leaning cases produce left leaning Justices in the majority. Most right leaning cases produce right leaning Justices in the majority. This isn’t always the case, but you can almost always count on seeing Justice Thomas dissenting in left leaning cases (Justice Thomas has actually dissented in the most cases of any other Justice. I use to hate him, but he is growing on me).

So, we ask the questions: why is this happening? Are the Justices suppose to be doing this? How can we stop this? What is going on? I’ll talk about all of this eventually.


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