Response to Garnett, Sachs, and Green on Originalism’s Intellectual History

Cross-Posted at The Faculty Lounge

Richard Garnett and Stephen Sachs, even if only by Twitter,  and a blog post by Chris Green at The Originalism Blog, responded to my post about the intellectual history of originalism (herehere, and here). A grad student could not ask for more.

Garnett and Sachs question whether it is problematic for originalism to have been “born in sin.” Sachs wrote: “Evolution by natural selection is also a powerful idea, but the early Darwinists were a buncha weirdos,” and Garnett followed up by asking, “So, do today’s progressives want to own the views of Holmes, Croly, and Wilson on race? Of Diderot on entrails?”

Twitter is a less than ideal medium for communicating nuanced thoughts and I do not think Sachs was attempting to draw a tight analogy between originalism and Darwinian natural selection, and I understand his point. Nor can I chide Garnett, at least not too much, for pointing out that many Progressive-era thinkers held racist views (though Garnett fails to note that the constitutional conservatives of the day also held these views). While it is now fashionable for libertarian and conservative scholars to point to the progressive era as the point the constitutional train went off the tracks — see Ken Kersch’s and Steven Teles’s contributions to this volume — the implicit comparison between capital-p Progressivism (a movement that can be difficult to define with specificity (see Daniel Rodgers’ classic essay “In Search of Progressivism“)) and originalism, a small “family” of theories of constitutional interpretation (and construction), seems inapt. And it also worth pointing out that today those who tend to hold racially conservative, anti-immigrant views combined with a white nationalism – the views Garnett points out as a problematic past for liberalism — are a wing of the GOP as currently constituted.

Green’s blog post picks up on what one would think to be a straightforward point: that originalism is both an academic theory and an integral component of the conservative movement. Green writes:

one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese’s July 9, 1985 speech as the point at which, TerBeek says, “self-conscious originalism [was] unveiled as a theory/movement,” TerBeek links to a paper by Stephen Teles on the history of Reagan’s Justice Department and notes that “the two strands are nearly impossible to separate.”

How does one distinguish a theory from a movement? Philosophers’ distinction between world-to-mind and mind-to-world directions of fit can help here.  . . . There is a difference, that is, between originalism failing to capture the imagination of legal elites–the failure of the movement–and originalism failing to capture the actual Constitution–the failure of the theory. If the theory fails (for instance, if the theory fails to match what Madison thought, and the theory also makes Madison’s thinking critical, or if the theory blurs sense and reference, or whatever), then the theory can be revised to match the reality in order to survive as a viable theory. The point is for the theory to match reality. Not so for political movements: if it turns out that the movement has not produced its intended effect, the movement cannot simply aim at something else and then declare itself a success; the whole point is to get the world to be a certain way.

Setting aside the salient fact that none of these three commentators dispute my empirics pointing toward a rather tight link between originalism and constitutional conservatives’ reaction to Brown, what one see here is distressingly common when one engages academic originalist theorists. Originalists do not seriously engage their own history but retreat into Frege or Grice or corpus linguistics or another idiosyncratic theory of originalism, and, perhaps most remarkably, now argue for originalism as a potentially replicable type of social science (or, like Garnett, attempt a “both-sides” critique).

But the idea that originalism the academic theory can be strictly divorced from its historical roots and political valence strains credulity in light of the evidence. As scholars like TelesKerschAmanda Hollis-BruskyJonathan GienappSaul Cornell, and Logan Sawyer (and a short essay by myself) have begun to show, originalism can escape neither its past nor its present. This scholarship has begun to demonstrate that originalism’s intellectual history appears deeply rooted in segregation; originalism shed its segregationist past as elite opinion and racial mores changed; originalism was developed over a number of years largely by conservative scholars who needed a compelling narrative to undermine Warren and Burger Court precedents and combat “non-interpretivism” and CLS in the legal academy; self-conscious originalism (contrary to the story originalists tell) was developed in the Reagan DOJ; the move to public meaning originalism was due to the ideological entrepreneurship of Justice Scalia and his former clerks who joined the legal academy; the “new originalism” was developed to justify the Rehnquist Court’s jurisprudence and encourage further jurisprudential developments by the Roberts Court (or chastise the justices when they disappointed); that originalism and the Federalist Society, inextricably intertwined, are an alternative knowledge structure from the liberal legal academy to provide intellectual ballast and support for conservative justices; that judges who are members of the Federalist Society are more conservative than non-member GOP nominees; and that one of the co-founders of Georgetown’s originalism “boot camp” and a prominent libertarian public intellectual, Randy Barnett, promotes his popularized work on Mark Levin’s talk radio show, and the other, Larry Solum, testified on behalf of originalism (and implicitly Neil Gorsuch) at the latter’s hearings.

To be clear, this is not to say that originalism as a serious academic inquiry is impossible. But originalists — besides largely ignoring the political valence of the theory as practiced and the conservative/libertarian intellectual support structure — seem reluctant to engage with historians’ and political scientists’ critiques of originalism. After years of being buffeted by academic historians, the linguistic turn was developed by Solum in order to avoid these critiques (though it is not clear that all originalists share Solum’s enthusiasm for this approach). Corpus linguistics, as used by originalists, appears to be another way to avoid historical critique at the same invoking the prestige of “big data” and putative rigorous empiricism — all the while ignoring the fundamental problem with originalism: the probable existence of multiple “original public meanings.”

The unproductive response to this evidence is to dismiss originalism as political hackery. It is not that. (Another irony in all this: historians and political scientists have taken originalism far more seriously as an idea than many liberal legal scholars). Originalism is better understood as providing the constitutional vocabulary for movement conservatism much the same way legal realism provided intellectual support for New Deal-era legal liberalism. But that also means originalism is inescapably part of the political terrain. However, originalists are now setting forth the intellectual architecture to claim that originalism is something like a replicable social science complete with a methodology. Thus — and this has long been its implicit claim — originalism is objective and any other theoretical construct is, by definition, constitutionally deviant. This is a bold, even audacious, claim. But it is one that needs to be debated and dissected rather than flippantly dismissed. Originalism has shown itself to be a powerful idea worthy of respect as a theory/movement. Originalists, at the same time, might do better to avoid the apolitical pretense that marks so much of the scholarship (and even the claims of more politicized actors like Levin). The final irony is this: originalism cannot achieve its desired hegemony unless and until its advocates engage with its critics rather than continually moving the proverbial goal posts. There still seems to be precious little evidence of that.

The Transition to Self-Conscious Originalism, 1977-1985

Cross-Posted at The Faculty Lounge

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork’s 1971 Indiana Law Journal article as proto-originalism and Rauol Berger’s 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more “theory” on this very point seven years after Berger’s book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger’s formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger’s book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after).

(more…)

Was Originalism Born in Sin?

Cross-Posted at The Faculty Lounge

The standard account of the origins of originalism, especially those set forth in the law reviews, is that Robert Bork’s 1971 Indiana Law Journal article building on neutral principles was proto-originalism, the beginnings of what we now know as original public meaning originalism. (Political scientists appear to have accepted this narrative). This account is not confined to academic settings—National Review’s Matthew Franck translated Bork’s article for a later generation of conservatives in an article titled, “The Original Originalist.” But the story appears to be more complex than generally supposed. While Bork invoked “framer’s intent” and privileged reliance on “text and history,” these analytical constructs had already taken hold on the Right as a way to critique Brown and as a shorthand to attack Warren Court “sociological” jurisprudence.

“When the constitutional materials,” Bork wrote in his canonical article, “do not clearly specify the values to be preferred, there is no principled way to prefer any claimed human values to the other. The judge must stick close to text and history, and their fair implications, and not construct new rights.” This purportedly set forth “the core originalist proposition.” (See Jonathan O’Neill’s widely cited history of originalism).

Bork also spoke of the “framer’s intent”; what “the men who put the amendment in the Constitution intended”; that “Value choices are attributed to the Founding Fathers, not to the Court”; judges must accept a legislative choice “unless it runs clearly contrary to a choice made in the framing of the Constitution”; averred judges cannot put into place what the “framers omitted”; and he highlighted that the “principle of one man, one vote . . . runs counter to the text of the fourteenth amendment [sic], the history surrounding its adoption and ratification, and the political practice of Americans from colonial times up to the day the Court invented the new formula.”

Importantly (and a point we will return to below), while Bork admitted, “The Court cannot conceivably know how these long-dead [Fourteenth Amendment framers] would have resolved [modern-era equal protection claims] had they considered, debated and voted on each of them,” he argued that Brown could be saved by fashioning “a purely juridical rule” (but not by “consideration of psychological test results”): that the framers of the Fourteenth Amendment “intended to enforce a core idea of black equality against governmental discrimination.”

Bork, in other words, was invoking ideas and concepts that would form the theoretical template of self-conscious originalism unveiled as a theory/movement—the two strands are nearly impossible to separate—in Reagan Attorney General Edwin Meese’s July 9, 1985 speech to the ABA.

But Bork’s language, though academic in tone, would have rung familiar to conservative ears. In 1960, Senator Barry Goldwater’s ghost-written The Conscience of a Conservative talked about constitutional rights claims in a similar manner. “For the federal constitution,” Goldwater intoned, “does not require the States to maintain racially mixed schools.” Through L. Brent Bozell, a National Review editor and de facto author of this popular political tract, Goldwater sought to demonstrate this with repeated invocations of the “intentions of the founding fathers” and the “intentions of the Fourteenth Amendment’s authors.” Bork, who served as an academic adviser, along with Milton Friedman, to the Goldwater campaign almost certainly would have been familiar with this line of reasoning.

Building on Conscience, Bozell set out to demonstrate to NR-style conservatives the historical mistake the Court made in Brown in The Warren Revolution (1966). A relatively quiet polemic, The Warren Revolution’s introduction is sophisticated and at times scholarly in tone. Bozell’s thesis was straightforward: until 1954, the year Brown was handed down, the “fluid” provisions of the Constitution, such as the Fourteenth Amendment’s equal protection clause, had been decided on the basis of interbranch dialogue. No one department of government dictated the meaning of these open-ended provisions; instead, through “organic processes” constitutional politics were settled collectively. (Impressively, the idea of interbranch dialogue in constructing constitutional meaning prefigures well-known legal scholarship from the 1990s).

However, the Warren Court, “with the encouragement of the country’s intellectual establishment,” had instituted a form of judicial supremacy. Brown was the epitome of this troubling trend. Prior to 1954, the “race problem” was, as “the original framers in effect decided,” left to be solved through interbranch coordination. No more. The Brown decision, relying on “psychological and sociological treatises” which were mere “opinion rather than fact” ignored “the views of the Constitution’s framers.” Mocking the Court’s reasoning—the Fourteenth Amendment’s framers “after all, had not read Freud”—Bozell reasoned that, “in 1954, thanks to the sociologists and the psychologists” the Court had taken upon itself write a “concept” of equality “into the Constitution.” Fond of italics, Bozell summed up his argument thusly: “The States that ratified the Fourteenth Amendment, equally with the Congress that proposed it, had no intention of outlawing separate schools” (all italics are Bozell’s).

One year later, at Thurgood Marshall’s confirmation hearing, North Carolina Senator Sam Ervin, a supporter of segregation and Jim Crow, engaged in a lengthy colloquy with the nominee that focused on the need “to ascertain and give effect to the intent of the framers of the Constitution.” Ervin and other conservative Southern Democrats would again and again refer to the framers and their intent, but as Laura Kalman demonstrates in her must-read new history, neither Ervin nor South Carolina Senator Strom Thurmond directly mentioned Brown.

Nevertheless, Thurmond repeatedly asked Marshall for his thoughts on the “original Constitution” (this was his most frequently used phrasing), the “original understanding,” the Constitution as “originally framed,” and the “original intent.” Indeed, Thurmond repeatedly quoted John Bingham to ask if this famous framer’s intent was relevant to interpreting “the scope of the equal protection clause as originally understood and intended by the framers in regard to the right to vote . . . enter desegregated schools, or engage in miscegenation?”

(As a point of comparison, these proto-originalist framings do not seem to appear in the confirmation hearings of Justices White, Stewart, Whittaker, Brennan, or Harlan; though Goldberg’s 1962 hearings contain numerous reference to “original intent” or the “framers intent” and Brennan was asked by the virulently racist Mississippi Senator James O. Eastland “whether current theories of psychology and sociology” change the meaning of the Constitution. (In 1955, Eastland, as historian Michelle Nickerson notes, “sponsored a resolution asking for an investigation of the ‘alleged scientific authorities upon which the Supreme Court relied’ in the Brown decision”)).

What appears to set Bork’s 1971 theoretical template apart, then, is not concepts, but the result: Bork defended Brown based on a “purely juridical rule.” (Though he was quick to add “that, cases of race discrimination aside, it is always a mistake for the Court to try and construct substantive individual rights under the due process or the equal protection clause”). By the time Bork delivered his lecture in 1971, racial mores were shifting and Brown‘s status as part of the canon had begun to solidy. In addition to Thurmond’s refusal to criticize the case at Marshall’s hearings, in 1968 GOP candidate Richard Nixon affirmed his agreement with Brown.

Of course, the concepts of original intent (meaning), text, and history have been part of constitutional law and our shared constitutional grammar since the days of the Marshall Court. And only so much can be said in a blog post. But for too long scholars have ceded the intellectual history of originalism to originalists (Gienapp/Barnett is key here).  (Originalism is now hegemonic on the Right–it has conflated with constitutional conservatism, and it defines any deviation from the original public meaning as a deviation of from the Constitution itself. It is not only a powerful narrative, it is a powerful idea. As such, its intellectual history is important.

If Bork, a creature of postwar movement conservatism, and the theoretical tools he developed as proto-originalism, were (re)developed to challenge Brown — both a testable proposition and one worth diving into — this is an intellectual lineage, originalists must grapple with.

Is Justice Alito a Crit (or Just a Movement Conservative)?

Cross-Posted at The Faculty Lounge

Given the larger current political environment, it is perhaps understandable a rather remarkable speech Justice Alito gave at the Claremont Institute in early February received relatively little media attention (Mark Joseph Stern excepted). In addition to setting forth a robust constitutional conservatism—not, notably, couched in the narrative of originalism–Alito also explicitly advocated for the larger conservative political agenda, in the process invoking decades-old resentments and through lines in postwar conservatism. This was not a Scalian speech arguing for originalism, but more in the spirit of William F. Buckley, one of Alito’s intellectual heroes–Alito’s 1985 DOJ application, declared, “I am and always have been a conservative” and that the “greatest influences on my views” were Buckley and Goldwater. While the critical legal studies movement is rightly associated with the Left, Alito appears to be the mirror image of a still-hypothetical Leftist crit justice (Douglas was the closest, Brennan’s story is more complex). It is difficult to read the Claremont speech and think otherwise. Alito is not only hinting at where he sees the Court moving with five conservative votes now, but how the conservative movement, from NR-style “fusionism,” Goldwater, the New Right, to the Federalist Society ecosystem, all shaped his worldview. This is a speech worth paying attention to.

The first substantive aspect of the speech touches on the regulatory state: “federal law,” Alito states, “is made in a way that is never mentioned in the Constitution. It is promulgated by unelected executive branch officials in the form of federal regulations.” The inexorable “result has been a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”

Alito is of the same mind as the House GOP which, one month prior to Alito’s speech, passed a bill(s) repealing Chevron deference because, as House Judiciary Chairman Bob Goodlatte stated, regulations were “overly burdensome” and holding back economic growth. Not coincidentally, Alito’s Claremont speech bemoaned the “enormous increase in regulations that we have experienced with all of the attendant effects on our economy.”

Alito had a ready-made explanation for the why regulations have been, necessarily, a drag on our economy.

Now, how did this happen? And again, I’m going to go over ground that was covered before. To make a long story short, toward the end of the 19th century and the beginning of the 20th century, the progressives of the day came to believe that our 18th century Constitution—our horse-and-buggy Constitution, as they sometimes called it—was outmoded. Woodrow Wilson—our only PhD President, by the way—is a picture of this thinking.

Now, just as an aside, I think it is interesting that of all the presidents, the one who best understood our constitution, who got to the real core of its meaning, was the one with the least formal education—and that, of course, was Abraham Lincoln. And Wilson, the president with the most formal education, was the most openly hostile.

This is of course in line with the scholarship of George Mason’s David Bernstein and prominent originalist Randy Barnett. Less happily, it is also the story told by Charles Murray and Glenn Beck.  Equally salient, though, is that Alito highlights a persistent trope of post-war conservatism–downplaying “expertise” and highlighting “common sense.” And after averring he is neither a “scientist” nor an “engineer,” a well-worn conservative talking point, Alito invokes standard-issue climate change skepticism:

“Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.”

President Trump’s new EPA chief, Scott Pruitt, toes this same science-skeptical rhetorical line. (Historians’ accounts of conservatives, especially religious conservatives, suspicion and attacks on expertise are exemplified by Jason StahlMatthew Avery SuttonMichelle NickersonMolly Worthen, and the forthcoming book by political scientists Eric Oliver and Thomas Wood).

This would all be remarkable enough. But Alito then weighs in on the “culture wars,” criticizing the Court’s handling of Fisher v. Texas. There “is an obsession,” Alito laments, “with putting people into racial categories” by those who defend affirmative action. And after briefly decrying the Court’s refusal to protect religious freedom (of Christians), Alito moves on to campus speech issues and the “university vanguard.” This attack is in line with a long tradition on the Right; e.g., Buckley’s God and Man at Yale, Dinesh D’Souza’s Illiberal Education, (recent anti-Trump liberal darling) Charlie Sykes’ Profscam, and Ben Shapiro’s Brainwashed.

And in connecting free speech issues with criticism of the “media elite,” Alito echoes a conservative truism dating back at least to Goldwater’s 1964 presidential campaign, at the same time working in a defense of Citizens United:

Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans. 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.

Finally, and this is perhaps the most remarkable point of the speech, Alito engages, without naming names, Mark Tushnet’s (ironically, a prominent crit himself) Balkinization post regarding the culture wars:

Here are the words of a professor from Harvard Law School, in May of last year, proclaiming, maybe prematurely, that the left had won the culture wars—the professor had the following advice. “My own judgment is that taking a hard line—you lost, live with it—is better than trying to accommodate the losers. Trying to be nice to the losers didn’t work well after the Civil War, and taking a hard line seemed to work decently well in Germany and Japan after 1945.

So, in other words, we have Nazis and former slaveowners, we have people who cling to traditional moral beliefs, same difference. They are losers in the war and they just have to accept it.

That Alito is deeply conservative is not the interesting point here. Nor is my aim to raise the hackles of (certain) liberals (especially those who have created a hagiography culture around Justice Ginsburg–the silly “Notorious RBG” meme which has perhaps encouraged some of her more impolitic remarks). More interesting is that judicial politics in 2017 allows a justice to explicitly advocate in a public speech not merely the judicial agenda of the conservative legal elite (who bided Trump’s oddities in exchange for a Supreme Court seat) but the larger conservative political agenda. Perhaps this is simply the next logical step after Scalia’s ideological entrepreneurism on behalf of originalism. Whatever else, it is telling of current political moment.

One of the originalist talking points during the Gorsuch nomination was that liberals should take comfort that Gorsuch is not a conservative living constitutionalist who will simply rule in the manner of a movement conservative. What they failed to mention is that there already is one on the Court.

 

Situating Justice Kennedy

At his recent Robert H. Jackson Lecture, eminent constitutional law professor Laurence Tribe said:

With Obergefell, Kennedy cemented his legacy as one of the Court’s great Justices, a jurist with a keen sense of the human condition whose favored doctrinal concept – that of “equal dignity” – is now enshrined as one of the crucial components of constitutional law.

Setting to the side whether Justice Kennedy is, or should be, on the list of the Court’s great justices [1], it might be more interesting to place Justice Kennedy within the current political context as the Court’s swing vote, or perhaps more accurately, the “super-median.” In addition to Tribe’s thoughts on Kennedy, two political scientists have written (descriptive) book-length treatments of Kennedy’s jurisprudence. (Collucci 2009Knowles 2009). Both involve close readings of Kennedy’s opinions, but neither looks at his opinions/votes in economic cases, instead focusing on Kennedy’s well-known civil rights and liberties opinions (Collucci also looks at his federalism opinions). The key words from the titles of the books — “the full and necessary meaning of liberty” and “the tie goes to freedom” — gives one a fair picture of the authors’ arguments in regard to Kennedy.

But if a scholar with the prestige of Tribe is ready to lend the “great justice” appellation, one might ask which “Kennedy” Tribe (and Collucci and Knowles) are referring to: Casey or Carhart IILee v. Weisman or Sorrell v. IMS? Lawrence v. Texas or Ricci v. DeStefanoRoper v. Simmons or Town of GreeceWindsor or Alden v. Maine? Whether one wants to call it “liberty,” “equal dignity,” or freedom-based tiebreakers, it does not seem to get us much closer to a full understanding of Kennedy if the spotlight is on the former opinions to the exclusion of the oeuvre. (And one might suspect that Tribe, a man of the left, is focusing on the former cases).

A quick thumbnail sketch taking into account Kennedy’s entire jurisprudence shows him occupying a political space that vacillates between a reflection of elite opinion and conservative legal elite opinion. This may seem at first blush a banality — the term “elites” is sometimes thrown around casually, and it’s not always clear how much work the term is doing. But if one looks at the substance of elite policy preferences and conservative legal elite opinion, Justice Kennedy’s jurisprudence is better explained in regard to these concepts than the comparatively abstract terms “equal dignity” or “liberty.”

For its part, elite opinion tends to be economically conservative and socially liberal. Indeed, simply being affluent — making “merely” $146,000 per year (roughly 90th percentile) — means much the same: the affluent are more socially liberal and economically conservative than those further down the SES ladder. Thus it is not surprising that affluent policy preferences are taken into account by the governing elites, while middle-class and lower-income policy preferences receive much less solicitude (Gilens 2012). In fact, low-income policy preferences are essentially ignored by lawmakers (e.g., Bartels 2008).

The conservative legal elite might be usefully delineated — at least for a blog post — by who they are and what they believe. The “who” are certain members of the Supreme Court bar (e.g., Paul Clement), legal academics (e.g., the new originalists), social movement litigators (e.g., the Institute for Justice, the ACLJ), the solicitor general and the OLP in a Republican administration, movement organizations (e.g., the Federalist Society), lower court federal judges, especially feeder judges (e.g., Judges Kavanaugh and Kozinski) and the justices themselves, most obviously Justices Scalia, Alito, Thomas, and Roberts, each having at least some ties to the Federalist Society. (Of course, Scalia played a central role in helping nurture the Society).

The story of the substance of conservative legal elite opinion might start (perhaps a bit arbitrarily) with the OLP’s “The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation.” There, Edwin Meese’s DOJ highlighted a hoped-for revitalization of the takings and contracts clauses in addition to conservative judicial positions on social issues like abortion, affirmative action and the like.

In many respects, conservative legal elite opinion has not changed much since Reagan. For example, in recent issues of the Federalist Society law journal (Engage), one sees The Constitution in the Year 2000’s programmatic commitment updated for today’s legal issues. Writing shortly before King v. Burwell came down, one conservative law professor argued against the legality of administrative fixes to the ACA. Another article is titled: Does EPA’s Clean Power Plan Proposal Violate the States’ Sovereign Rights? The authors are quite certain that the question should be answered in the affirmative. The polling company the Federalist Society turns to with some frequency almost always concludes that voters & c. generally support conservative or libertarian legal results. Hans von Spakovsky — part of the vanguard who helped lay the legal and disputed empirical basis for Shelby Countywrites of the archaic nature of Section 5 of the VRA (political science research to the contrary). Wendy Long, former law clerk to Justice Thomas and counsel for the Judicial Confirmation Network argues that “Roe is anachronistic” based in part on “fetal pain” research (again, research that is tendentious). Another author makes the argument that the Roberts Court has not been terribly supportive of business (yet again, empirical evidence to the contrary (Epstein, Landes, and Posner 2013)). And a conservative law professor critiques a Sixth Circuit’s pro-affirmative action decision which the Court subsequently reversed (Schuette). In short, while the Federalist Society states, “[a]s always, [it] takes no position on particular legal or public policy initiatives,” the political views it provides a venue for seem monochromatic.[2]

Given the above, one can see that Kennedy’s views map onto the preferences of the elite (and affluent) fairly well.[3] On the socially liberal side of the coin, Kennedy’s views regarding abortion (Carhart II can cut either way), LGBT rights, marriage-equality, and his opinions circumscribing the reach of the death penalty are consonant with socially liberal elite policy preferences. The same can be said of his economic conservatism. Besides the obvious example of Citizens United, Kennedy has largely signed onto the economic agenda of the New Right as constitutionalized by the conservative legal elite. His Sorrell opinion is far-reaching in its scope as constitutionalizing, via the First Amendment, a deregulatory agenda for economic rights claims. Kennedy shows solicitude for private property, even invoking economic substantive due process in some cases where the Court’s other conservatives rely on the more traditional doctrinal hook, the takings clause.

The same can be said for non-constitutional economic cases. Kennedy has been in the majority coalition in many of the Court’s decisions forcing litigants into arbitration which has the de facto effect of minimizing business’s exposure to otherwise cognizable claims. Kennedy has been in the majority — some of the cases were unanimous — in the Roberts Court’s antitrust jurisprudence, a body of work the Heritage Foundation gave its imprimatur to. Indeed, according to Epstein, Landes, and Posner, Kennedy is one of the most business-friendly justices — especially in 5-4 splits — in the modern-era, even more so than Justice Scalia (though the difference is not statistically significant; Alito and Roberts are numbers 1 & 2). Justice Kennedy, 10,000 foot, is economically conservative and socially liberal.

But Kennedy, at times, also betrays the socially liberal elite. While Kennedy’s liberal civil liberties apostasies[4] are bemoaned by the conservative legal elite and the right-wing media, Kennedy may very well be the vote that takes down affirmative action in higher education, thus aligning himself with the conservative legal elite.[5] Joan Biskupic reported that Kennedy wrote an opinion for the Court’s five conservatives in Fisher I finding University of Texas’s affirmative action program unconstitutional, but backed down after Justice Sotomayor wrote a bracing dissent. It is too early predict with total confidence what the Court will do in Fisher II, but is seems plausible that, in the least, the Court’s four conservatives voted to grant cert with the hope of Kennedy standing firm this time around. What is more, Kennedy has been a consistent vote to strike down affirmative action policies in other contexts (e.g., Adarand). Kennedy has also largely signed onto the “colorblind constitution” espoused by conservatives, though not as forcefully as his fellow conservatives (e.g., Shelby County, Parents Involved, and Ricci).

It appears, then, “liberty” and “equal dignity” don’t have much explanatory purchase in regard to Justice Kennedy. Indeed, outside of the socially liberal carve-out Kennedy has made for himself in a handful of high-profile cases, he, and thus the Court, are solidly conservative. In fact, Kennedy’s economic conservatism — and even when the cases are not 5-4 this tells one more about the triumph of neoliberalism in regard to the Court’s liberals than anything else — is an underreported story[6]. (And there is no good reason to think that all the work political scientists have done documenting the elite capture of the elected branches might not apply as forcefully vis-a-vis the elites that make up the Court). At all events, future scholarship on Kennedy should take into account his entire body of work, and what this body of work says about his and the Court’s place in our political system. Too-quick paeans to Kennedy’s humanity or vacuous abstractions do not fill that picture.

[1] For some earlier attempts to rank the justice see here, here, and here.

[2] Not to say there are no differences. A fascinating vignette from historian Andrew Hartman’s new book on the history of the culture wars: as attorney general, Meese chaired a commission on pornography that concluded — perhaps prudishly to today’s ears — the material was “a social threat.”

[3] Simply by virtue of being a Supreme Court justice, Kennedy is a political cum legal elite. Kennedy is affluent as well. While being the least wealthy member of the Court, Kennedy still has a reported net worth between $330,000 and $700,000. The median net worth for a U.S. family is $81,200. Associate justices of the Court make $213,900 in yearly salary; the median family salary in the U.S. is $46,700. Thus, one would expect Kennedy’s policy preferences (Segal and Spaeth 2002) to be socially liberal and economically conservative.

[4] Scholars and journalists have made a persuasive circumstantial case that the “Greenhouse Effect” is not a conservative conspiracy theory and that Kennedy might succumb to such on occasion.

[5] Elite opinion supports affirmative action, though not necessarily for traditional civil rights reasons.

[6] Indeed, the fact that Kennedy signed onto what was a novel commerce clause argument with the Court’s other conservatives in NFIB is rarely mentioned when Kennedy (or the case) is discussed.

Partisan Polarization and Supreme Court Legitimacy (And What about Judicial Rhetoric and Celebrity?)

When Obergefell came down in late June, Justice Scalia’s dissent became a media storyline in its own right. From “mummeries,” hiding his “head in a bag,” to “[a]sk a hippie” – the last of which lit up Twitter – Scalia managed to write himself into the headlines (again). Not surprisingly, Jon Stewart used his platform to poke fun at Scalia. Less lightheartedly, and picking up on the central leitmotif of the dissents – especially Justices Scalia’s and Alito’s – GOP opinion leaders and politicians denounced the Court’s ruling in vituperative tones. Mike Huckabee advocated for resistance to an “imperial judiciary,” while Ted Cruz revivified interposition and nullification. The Family Research Council analyzed the case for its members by highlighting the dissents’ claims of  “social policy” created by “unelected judges.” Seven states – Texas, North Carolina, Alabama, Arkansas, Kentucky, Ohio, and Tennessee – have had public officials opt out of recognizing marriages. Texas’s attorney general issued an edict contending that the Court “ignored the text and spirit” of the Constitution, “manufacture[d]” a new right, and claiming the “Court weakened itself and weakened the rule of law.” One Louisiana supreme court justice wrote (in a concurring opinion in a case dismissing as moot a SSM rights claim in light of Obergefell) about the “horrific impact these five lawyers have made on the democratic rights of the American people.” Another dissented on the basis that he did not “concede” to the Court’s ruling. The list could go on.

Compare, for example, the reaction to Obergefell versus the closest chronological analogue: Casey. The reaction to Casey was noisy, but both sides’ partisans viewed the decision as a loss. Even Roe v. Wade was met with a comparatively tepid reaction outside of the Catholic Church and the then-comparatively small band of pro-life activists. It barely registered with Nixon and the White House. Indeed, some evangelical groups, like the Southern Baptist Convention, adopted a “middle ground” approach to the issue.

But the reaction to Obergefell, and the themes it struck, are more reminiscent of the Southern Manifesto (formally known as the Declaration of Constitutional Principles). “Naked power” vs. “judicial putsch.” Invocation of the Founding Fathers. The lack of an explicit textual basis for either decision. An original meaning spin on the 14th Amendment. The Court overturning a long-held societal construct. States’ rights.

Of course, no one thinks there will be years of inaction in enforcing this ruling (like Brown). And many mainstream GOP officials announced begrudging compliance with Obergefell. So this makes it easy to dismiss the reaction and rhetoric detailed above – of course the losers in this culture war fight invoked overheated rhetoric. But the resentment of those in this culture war loss — it’s really just a battle as the forum for this fight will now be litigating religious freedom and “conscience” claims — should not be pooh-poohed. Nor should it be overlooked that it appears some of the justices’ rhetoric in dissent helped fan these partisan flames. And it seems worth noting that the Court’s approval ratings are down over the past decade while its disapproval numbers are up sharply. In short, is the reaction to Obergefell a sign of the Court’s decreased legitimacy?

A fair amount of political science research on the Court’s legitimacy counsels against knee-jerk reactions. The conventional view is that the Court’s legitimacy is based on its “diffuse support” that the Court shores up by “pointing towards its distinctive ‘non-political’ role in the American political system.” (Gibson and Caldeira 2009). The Court as an institution, perhaps counter-intuitively given the political nature of its big-ticket cases, also enjoys the support of those more knowledgeable about the Court. (Ibid.). Gibson and Caldeira argue that the Court’s diffuse support is “obdurate”  — even Bush v. Gore did not move the needle much over the long-run. (Ibid.).

Why does the Court have this reservoir of good will? The answer seems to be its role as a legal institution as opposed to a perception of the Court as blatantly political. Tom Clark puts it nicely: “Because the public perceives the Court as acting on higher, constitutional authority in the capacity of a legal institution rather than on ideological grounds as a political institution, divergent decisions are perceived as acceptable” (Clark 2011).

The conventional view, however, is being called into doubt. Partisan polarization has infected not only elites, but also the public (e.g., Abramowitz and Webster 2015). Indeed, elite partisan polarization has caused the polarization we have seen on the Roberts Court: the Republican appointees, with occasional apostasies by Justice Kennedy, largely vote the “party line” as do their Democratic counterparts (Baum and Devins 2015). How the public learns about Supreme Court decisions is complex (Gibson and Nelson 2014), but there is a substantial body of research arguing that elite rhetoric and framing help form public opinion (e.g., Jacobs, Druckman, and Ostermeier 2004). And we know that many high-information partisans choose to get their news from partisan news sources such as Fox News and MSNBC and similar content in different mediums (Prior 2013). Given this, it might be troubling that being exposed to unilateral “media frames” results in more opinion change (Chong and Druckman 2013). In fact, a recent study shows that partisan depictions of Supreme Court decisions affect how people view the Court’s decisions (Nicholson and Hansford 2015; see also Bartels and Johnston 2013).

There has been some push back to this revisionist literature, based on, among other things, the idea that the Court is ideologically divided roughly 50/50 such that this creates legitimacy gridlock — each side has decisions to like and oppose (Gibson and Nelson 2014). (N.b., one might question if this is even accurate as the Court is rather plainly more conservative overall than not).

In any event, consider the research from this angle: if the Court’s legitimacy flows from its standing as a legal institution, then what do we know about why the public holds Congress in so little regard? A set of two scholars in two books have persuasively argued that the public dislikes Congress for two separate but connected reasons: (1) because of the very public nature of Congress itself (professionalized politics, veto points, lobbying, prickly debate, compromise necessary for legislation); and (2) the public views Congress a self-dealing, self-interested institution (Hibbing and Theiss-Morse 1995, 2002). In other words, perhaps the Court’s legitimacy is mostly easily understood as its ability to differentiate itself from members of Congress.

Beyond the rhetoric of the justices’ dissents appearing to deliberately undercut the legitimacy of the Court’s decisions (this issue is not limited to Obergefell), there is a celebrity culture that has grown up around the Court. Following up on Judge Posner’s remarks on this issue, Rick Hasen recently wrote a short essay that is a good first cut at understanding “Celebrity Justice.” For example, and to no one’s surprise, Hasen shows that eight of the nine justices on the current court occupied the top nine spaces in average public appearances per justice per year dating back to 1960 (a useful but somewhat crude measure (as Hasen admits)). What is more, Hasen shows that public appearances during the Roberts Court (through 2014) have increased 820 percent since the 1970s (1970-1979), and grown significantly just since the 1990s. The paper also notes some of the trappings of this celebrity: “Notorious RBG” as embraced by Justice Ginsburg, Scalia’s tart tongue in public Q&A sessions, and the justices’ appearances before groups that are ideologically aligned with their priors (e.g., the ACS for one side and the Federalist Society for the other).

To be sure, there is a relatively small audience for these appearances — the Article III Cult remains somewhat cloistered. But if the Court’s long-term legitimacy is based on its ability to preserve public perception of it as a non-political, legal institution, then overheated dissents with the justices reaching for one-liners – long a characteristic of Scalian rhetoric, and a trait Justice Roberts seems to have picked up on (“What chumps!”) – and “Notorious RBG” taking to the pages of the New York Times to denounce rulings as “activist,” might be affecting the public’s perception. And this is to say nothing of the competing legal farm teams each side supports thus helping to reinforce the polarization of legal elites.

All of this is not to sound like a scold or a Cassandra. And exciting interdisciplinary research is being conducted to further explore the issues affecting the Court’s legitimacy. It is too early for normative arguments regarding the above until we better understand the empirical evidence. But the milieu surrounding the Court right now – celebrity culture, polarization on the Court which perhaps leads to overwrought and delegitimizing dissents – is not only a cause for further research, but perhaps consternation as well.

Abortion, LGBT Rights, and Available Legal Arguments

Jill Lepore is a well-known historian who regularly writes for the New Yorker. Her latest piece, To Have and To Hold: Reproduction, Marriage, and the Constitution, takes up the legal arguments that lawyers have been making vis-a-vis LGBT rights and contrasts them with reproductive rights legal arguments. Here’s the pith:

There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.

Tap dancing through constitutional history from the ratification of the 14th Amendment to Obergefell, but largely focusing on the legal arguments made and (sometimes) accepted by the Supreme Court in reproductive rights (Griswold, Roe) and LGBT (Bowers, Lawrence) cases, Lepore seems to believe that if lawyers had just made better (read equal protection) arguments reproductive rights might be ascendant like SSM.

This is quite wrong, but serves as an occasion to review why the law developed as it did. Mark Graber, over at Balkinization, in a slightly mocking but yet deadly serious post, has taken down Lepore’s argument from the perspective of race and equal protection (“Maybe Freddie Gray Should Have Made Equality Arguments” is the post’s title). Expanding on that: for a piece of work by a historian, Lepore surprisingly lacks attentiveness to historical context. Most obviously, equal protection arguments were not “available” to the justices in Griswold. Recall that Hoyt v. Florida, largely contemporaneous with Griswold, rejected an equal protection argument made by a woman who faced an all-male jury — even Justices Warren and Douglas concurred in that ruling. What is more, Yale law professor Tom Emerson — Griswold’s attorney — did not bother setting forth an equal protection argument, and none of the justices in conference afterward considered it a possible textual hook to overturn the Connecticut birth control law. David Garrow’s history tells us that Warren explicitly rejected the Equal Protection Clause argument, and the justices who voiced a textual or doctrinal rationale insisted on a right to privacy, the Due Process Clause, and Pierce and Meyer.

Lepore makes hay that amicus briefs submitted in Griswold set forth an equal protection argument. And law professor Justin Driver has written a paper arguing that the Warren Court could have ruled in favor of Hoyt (and indeed, according to Driver, could have been an even more liberal court). However, when one considers the howls of laughter in response to segregationist Rep. Howard Smith’s (D-Va) inclusion of “sex” into the 1964 Civil Rights Act, these arguments take on a post hoc flavor. The elite consensus was simply not there for an equal protection argument to command five votes.

One important reason for that is legal norms and mores. There was no equal protection case for Emerson to cling to, but there was Meyer and Pierce (remember further that in 1927 Holmes had called equal protection claims “the usual last resort of constitutional arguments”). These right to privacy cases had created something of a path dependence for the Court and for litigators. Moreover, some of the justices, saliently Douglas, consciously avoided substantive due process and Lochner like the good New Dealers they were. This was another constraint that help shape Douglas’s “penumbra” opinion and Goldberg’s 9th Amendment concurrence.

And of course Griswold led to Eisenstadt which led to Roe. Despite recognizing a gender rights claim in Reed v. Reed, neither the Court nor the lawyers crafting the rights claims in Roe took the equal protection argument seriously (Lepore’s piece excerpts Justice Stewart lightly giving Norma McCorvey/Roe’s attorney grief for her kitchen sink argument in regard to the textual basis for the abortion right). Instead, the first round of arguments in Roe saw the justices mostly concerned with abortion as a medical procedure and the re-argument — so that Justices Powell and Rehnquist could participate — focused on the constitutional status of the fetus. Here again, the path dependence of what came before helped shape the legal arguments; the available “on-the-wall” legal arguments as Jack Balkin puts it. It would take the thrashing of Justice Blackmun’s opinion* — saliently by John Hart Ely and later in the decade by the emergent Christian conservative right — for liberals to begin to think about the Equal Protection Clause and other textual homes for abortion rights claims (none of which have ever been adopted by the Court).

There are other problems with Lepore’s argument — e.g., her odd take on the 19th Amendment and the issues highlighted by Graber — and her overall point seems of a piece with those op-ed writers who troll political scientists with “Obama just needs to use the bully pulpit to tell a better story” editorials. Lawyers cannot advance arguments that won’t be taken seriously if they want to be taken seriously. Just the same, justices want to be taken seriously by their relevant audience. Simply because someone is willing to posit a particular legal argument does not make it available to the justices. Lepore would do well to remember, for example, that about the same time Sanford Levinson wrote “The Embarrassing Second Amendment,” and Don Kates was helping work up the intellectual framework for gun rights claims, ex-Chief Justice Burger was telling Americans that the individual rights view of the 2nd Amendment was “a fraud.” What happened between 1989/90 and Heller (2008) — on that score I would recommend Tom Keck’s latest book — with the gun rights movement is how constitutional law is created (and one could trace the full story back another twenty-odd years). That is, clever or sophisticated legal arguments are perhaps necessary to make constitutional law, but they are never sufficient.

*Blackmun appears to have been “egged on” by other justices to write a more expansive opinion than he was initially inclined to write.

The Six Horsemen (of the Apocalypse)

Actuarially speaking, there are four justices on the Court that the next president might replace: Justice Ginsburg, Justice Breyer, Justice Scalia and Justice Kennedy. Ginsburg is the oldest at 81 (she’ll be 82 in March), followed by Kennedy and Scalia at 78 years of age; Breyer is 76. Progressives are alternately worried and hopeful about the next appointment(s?) cycle.  A number of liberals, perhaps most prominently Erwin Chemerinsky, called for Ginsburg to step down after OT 2013 in order to ensure that a Democratic president would appoint her successor; others, like Dahlia Lithwick, dismissed this notion.  Other progressives have discussed the possibilities of replacing either Justice Scalia or Justice Kennedy.  Mark Tushnet (writing without much political valence) penned an interesting post regarding what might be a feasible agenda for a liberal majority on the Court should a Democratic president replace Kennedy or Scalia (spoiler alert: keep your hopes in check).  The prolific op-ed writer Chemerinsky both frets and grins depending on which justice is replaced by a Democratic or Republican president (as constrained by the Senate’s composition).  And the Huffington Post seems fairly confident that Hillary Clinton will defeat the Republican nominee and subsequently usher in a liberal “era” for the Supreme Court.

Much of this well-worn ground.  But what never seems to be discussed is which scenario — a Democratic president replacing Scalia and/or Kennedy; a Republican president replacing Ginsburg and/or Breyer — is better informed by political science. And if you were wondering: as of right now, the news from political scientists provides little ballast for liberals’ hopes.  As reported in National Journal, Alan Abramowitz’s “Time for Change” model currently has Clinton — stipulate for present purposes that she will be the Democratic nominee — winning 48.7 percent of the vote.  Even worse for those who fear six conservative votes on the Court (even if it’s only for a few years depending on who retires when), Abramowitz’s model, in order to push Clinton past 50 percent, would require President Obama achieving higher levels of popularity and a roughly 45 percent increase in GDP: from 2.4 percent growth to 3.5 percent.  (N.b., Abramowitz’s model utilizes only three variables, but he has picked the popular vote winner in each election since 1988).  The bad news doesn’t stop there: the most moderate of the plausible GOP nominees, Jeb Bush (again, based on political science data, and, no, I am not including Chris Christie as a plausible nominee), will still nominate to the Court someone in the vein of Chief Justice Roberts.

On the proverbial other hand, it is not wholly implausible that the “fundamentals” will change in the interim such that Clinton becomes the favorite.  What is more, the sample size for elections following a two-term president since 1856 — and this is to say nothing of what scholars deem the modern-era of the presidency (post World War II) — is small and the evidence mixed.* Finally, this may all be a moot point.  It would not be unreasonable to posit that all four of the aged justices will simply serve through 2020; we know, for example, that Ginsburg is not too old to imbibe before the State of the Union bedtime be damned.

Whatever may happen, including what is as of now (more) likely to happen, it is safe to say that “The “Constitution in 2020” may look quite different than some legal academics had imagined, which is to say: worse.

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*However, Ambramowitz’s model’s current expectation of a Republican presidential victory in 2016 is consonant with what we know from American Political Development and regime politics scholars.  Julia Azari, for example, has persuasively argued that Obama fits well within the “preemptive presidency” stance — that is, “a politician who comes to power while the dominant ideas still mostly emanate from the other party.” Jack Balkin is a little more confident: he argues that the New Right regime is on the way out, but that we might be experiencing a (slow) regime change sans a reconstructive president.  (This is based on Stephen Skowronek’s important work on “political time”).