• Utah’s governor and Senate will soon be considering a nominee to serve as a Utah Supreme Court justice.
• The Utah Supreme Court has recently made some decisions that are at odds with the text and historical understanding of the Constitution based on abstract principles, as illustrated by last year’s abortion decision.
• The governor and Senators should ask prospective nominees questions about whether extraneous considerations can displace constitutional text and meaning.

​In the coming months, Utah government leaders will be considering a new justice for the Utah Supreme Court. On May 30, Justice John Pearce, who has served since 2015, announced he would retire near the end of the year.

A new justice is chosen from seven nominees identified by an appellate nominating commission. This commission considers applications from attorneys. After the governor nominates someone to fill the vacancy, the Senate has 60 days to approve (by a majority vote) the nominee or the process will begin again.

Governor Spencer Cox’s nominee will be subject to confirmation by the Utah Senate. In the past, these confirmation hearings and debates have been understated, but recent attention to controversial state court rulings will likely make the upcoming deliberations different.

That is as it should be. The work of courts is not as visible as that of the other branches, but it is absolutely essential. All efforts to enact public policies in the state will be irrelevant if the courts find that they are inconsistent with state and federal constitutional guarantees. That is appropriate if the courts are acting consistently with the requirements of the Constitution. It is not if the courts create new rules beyond the Constitution and the laws made pursuant to it.

Constitutions reflect the highest aspirations of a state or nation about how to make critical decisions and how to protect citizens’ rights. Legislative and executive decisions at odds with the Constitution are invalid. We must be able to trust judges to do their very best to ensure that the other branches observe constitutional constraints and to act when they do not, disregarding any considerations that might dissuade them from doing so.

As important, we must be able to trust judges not to introduce extraneous considerations in their opinions or create requirements beyond those approved by the people in their constitution or through constitutionally established procedures that ensure representative lawmaking.

Otherwise, the temptation for judges to weigh in and “get it just right” would be a tremendous burden. Thankfully, we do not expect our judges to have superhuman ability to determine what constitutes good laws. Their job is to apply written laws. This does not guarantee objectivity, but it is likely to get closer to that ideal than other approaches, such as trying to make good policy based on abstract notions of fairness or progress.

A recent example illustrates this. In August of last year, the Utah Supreme Court issued an opinion in a challenge by an abortion provider to Utah’s abortion regulations.  The court decided that Utah’s law could not be enforced while the lawsuit was pending, in part because the challenge raised serious legal issues. In other words, the judges implied the Utah Constitution might be construed to provide a right to abortion, like a state-level Roe v. Wade decision.

There were two significant problems with that conclusion. First, the Utah Constitution does not mention abortion, much less create a right to abort an unborn child. The Supreme Court noted this fact but waved it off, saying that “principles” recognized in prior cases might create a right to abortion.

The second problem was that any unwritten rights derived from the Constitution have been understood to require a showing that the original public meaning of the Constitution would have included that right. This would be demonstrated by evidence from historical practice. That is an obstacle to finding a right to abortion, of course, because abortion has been illegal in Utah since territorial days.

In last year’s decision, the court suggested that “the common understanding” at the time of statehood might include a belief that abortions at an early stage of pregnancy were not “wrongful.” Presumably, this would mean that Utahns at the time of statehood believed that the Constitution contained a right to abortion, at least in the early stages of pregnancy. The court backs this startling suggestion with a reference to a theological journal describing an 1896 book by a doctor who practiced medicine in Utah. Following the footnotes, Dr. Sorenson’s book, on the cited page, says:

Feticide or willful abortion means the destruction of the foetus while yet in the uterus. It is considered by some no sin to destroy the foetus in the early months. I fail to see the difference in the crime to destroy offspring a few days old or nine months old. Some argue this way: They believe it a sin to destroy offspring even in the first months of pregnancy; but not sin to use means whereby to prevent conception, and then they take that course.

This is a far cry from establishing any kind of understanding that abortion was a legally protected right at the time of statehood.

It merely says that (1) “some” people (Utahns? Americans? How many people?) think that early abortion is not a “sin”; (2) the author thinks there is no reason to distinguish between early and late abortions (which, she believes “destroy” a fetus); and (3) other people think abortion is a sin at any point but accept contraception. From this passage, we know nothing about how widely accepted the various opinions were, who held them, what relevance this has to understanding of the law, etc.

By contrast, excellent research by a Sutherland intern resulted in a 15-page list of newspaper citations from Utah territorial times through early statehood that invariably speak of abortion as wrongful and criminal.

This is the kind of reasoning and result that can be expected when a court reaches beyond the text and original meaning of the constitution to abstract concepts to make new law.

Of course, individual judges will not be perfect (this is one reason the court system includes multiple opportunities for review involving multiple judges), but when they fulfill their responsibilities, they can form a bulwark of liberty and the rule of law.

That is why decisions about who will serve as judges and how those judges will approach their duties are so vital.

Therefore, when the governor makes a nomination and the senators consider confirmation, they will want to ask the candidate questions beyond conventional qualifications, such as previous experience. It is not only appropriate, but essential, to try to ascertain how the nominee understands and will approach the judicial role.

For instance, senators should ask:

• Do you believe that judges should be constrained by the intent of the people and legislators as expressed in the text of the laws they enact, or try to determine what they “really” wanted, regardless of the language of the law?
• Is it appropriate to adjust the express terms of the constitution in order to advance principles like fairness or to make it more relevant to current trends?
• Do you believe it is appropriate to abandon previous court decisions that are at odds with the Constitution?

The specific wording of the questions is not as important as the principle that those charged with overseeing the judiciary take seriously their role and ensure, to the degree possible, that the judges they nominate and approve understand and are committed to making their judgments guided by the original meaning of legal texts.

This is a decision the political branches need to get right because the integrity of our system of ordered liberty depends on it.