Noble is quoted as saying:

"It is real easy, from an academic standpoint, to get all caught up in ideas, and labels and positions, and never think about the fact that that case belongs to real people," Noble said.

It seems unfortunate that Judge Noble criticizes those who “get all caught up in ideas,” as if having ideas are a bad thing and a modest judicial philosophy devoted to enforcing the original meaning of legal texts is a danger to the rights of the Commonwealth’s citizens.

These dangerous “ideas,” such as judicial modesty, restraint, and the humility to subordinate one’s notions of what the law should be in favor of what the law is, are incompatible with Judge Noble’s apparent view that judges know best. While Noble may be correct that “that case belongs to real people,” she misses the larger point – that the law belongs to all of the Commonwealth’s citizens, not just those before her bench on any given day.

While the old adage may be, “You can’t beat something with nothing,” that does not stop the critics of originalism and textualism. There is not a single unifying theory put forward by any of the critics of Scalia’s and Roach’s jurisprudence, and they do not have one to offer. Scalia and Roach look to the text of the Constitution and the laws as enacted by the legislature, and attempt to interpret the law in light of what those who drafted, enacted, and ratified the law believed they were saying. In sum, according to Scalia and Roach, words mean things, as they are the (albeit, imperfect) expression of ideas – not the ideas of judges, but the ideas of legislators and ratifiers. Therefore, according to the originalist or textualist judge, the words used by the legislature in enacting our public policy should say what they mean and mean what they say, and are interpreted accordingly.

On the other hand, jurists like Noble tend to have an inflated view of their own ideas as to what is just under the circumstances. They eschew “ideas” and judicial philosophies that restrain the judiciary to implementing the public policies enacted by the people’s representatives. They believe that they, the enlightened judiciary, have ideas and concepts of justice far superior to those embraced by the popularly elected legislature and the Framers of our constitutions. They have no unifying theory of judicial philosophy because they seek only to implement their own ideas of what the law should be in the circumstances. But rather than defend this concept of the judges’ role in our governmental system, they simply impugn the modest philosophy embraced by judges like Scalia and Roach in an effort to score cheap political points and distract voters from their philosophical sleight of hand.

To be sure, I do not doubt that Noble and other judges of her stripe sincerely believe that they are seeking to do good, promote justice, and better our jurisprudence. But they do so by sacrificing a stable and anchored jurisprudence, faithful to the ideas and intentions of the legislators and framers. They instead offer us an unstable and unmoored jurisprudence that changes with their individual tastes over time. In their effort to do what they see as “justice” under the circumstances in a given case, they do great harm to the rule of law, which belongs to all of us.

As Justice Scalia has said so succinctly,

"The more your courts become policy-makers, the less sense it makes to have them entirely independent."

The Third Branch is now embroiled in a jurisprudential crisis. Their independence is in jeopardy – not by expensive judicial campaigns, criticism of their decisions, or by judicial candidates soliciting contributions to their campaigns, but by its own hand, which it has refused to stay in deference to the Legislature’s ability to legislate. After this election, and in the years to come, we may see the judiciary take the steps necessary to correct the problem. Or maybe not.