Month: February 2015

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.

_______

*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”).

Originalism’s Obituary

Originalism is facing an existential crisis.  Some of its leading proponents might not know it — might not want to admit it — but viewed from the outside it seems clear that the edifice of originalism, old and new, is crumbling.  To use Thomas Kuhn’s The Structure of Scientific Revolutions as a helpful analytical jumping-off point: the new methods of thinking about constitutional interpretation (i.e., original public meaning) were developed because the old methods (e.g., original intentions) were not up to the task of solving the “dilemma” of interpretation (neutral and objective criteria for judging), but instead have now thrown the “state of knowledge” (about the “best” theory of constitutional interpretation) into flux or crisis as views once deemed heretical or unforeseen (progressive results flowing from an originalist approach) have opened the field.  However, unlike Kuhn’s model for scientific knowledge, there will be no new originalist paradigm that emerges from this crisis.  That is, no one version of originalism will triumph to return the state of knowledge back to “normal” (originalist) theorizing. The originalist project has finally collapsed in on itself.

Two recent events help illustrate this point.  First, Steven D. Smith, a conservative law professor, is so unhappy with the consequences of original public meaning originalism — the type most legal academic originalists subscribe to, viz. new originalism — that he wants to jettison the entire project and start over with something he tentatively calls “original decisions originalism.”  (He sketches out this approach in a essay and concomitant mini-symposium at the Library of Law & Liberty Blog).

What are these unhappy consequences of the new originalism?  For one, Jack Balkin. [The working title of this post was called: “Did Jack Balkin Murder Originalism?”]  That is, Balkin’s progressive version of originalism provides theoretical cover for decisions like Roe v. Wade (this is called “living originalism” or “framework originalism”).  Living originalism is troubling to Smith.  In reading Smith’s short essay, it is not difficult to discern that Smith is concerned about new originalism shoring up the legal justification for same-sex marriage.  Thus the moving force behind Smith’s original decisions originalism — e.g., would “an enactor” of the equal protection clause be surprised to learn that the clause was being invoked in the name of same-sex marriage? If so, then the justices should not strike down the same-sex marriage bans — is Smith’s desire to excommunicate Balkin because originalism’s ideological tent has grown too big if Balkin’s version of originalism can be called such.  (I’ve written before how conservative originalists’ arguments have a religious overtone, and true to form Smith’s fellow ideological traveler (Steven Sachs) has a commentary on Smith’s approach called “Saving Originalism’s Soul.”)

The other event illustrative of the crisis originalist theory finds itself in began innocently enough.  At The Volokh Conspiracy, Orin Kerr asked whether there was a serious originalist argument for banning same-sex marriage (he thought not).  Then the indefatigable Larry Solum responded to Kerr’s post.  Solum’s response contended that Kerr was conflating two putatively important questions regarding originalist theory and Kerr replied.  (In actuality, the two were talking past each other).  The exchange then ended with another Solum post deeming Kerr’s “thoughtful” reply as containing a version of “Batshit Crazy Quasi-Originalism.” (Solum, I think, was being tongue-in-cheek).

Why do I choose these two examples as indicative of originalism’s demise? Three separate but interrelated reasons. First, lest there was any doubt, it is now undeniable that originalism is merely an ideological project masquerading as a neutral theory of constitutional interpretation.  (Solum, who works from a (contestable) philosophy of language standpoint, and Keith Whittington are the two important exceptions to this. Also, n.b., Balkin and Randy Barnett explicitly acknowledge the normative nature of (their versions of) new originalism). Second, if originalist theory has devised so many variations/mutations (on which more below) then, contra Solum, originalism is not a “family” of related approaches, but a hodgepodge of theorists fighting for control of the terms of the debate.  Finally, originalists have failed, despite numerous pleas from historians and political scientists, to come to terms with the historical and empirical reality of both the past and present thereby impoverishing the theory.

The first and second reasons are distinct, but closely related.  After originalist theorists drew the line between “interpretation” and “construction” — a dichotomy that Keith Whittington did the intellectual heavy lifting for — the new originalism splintered.  Each theorist seemingly has their own preferred, and sometimes idiosyncratic, version of originalism.  As noted, there is Balkin’s liberal living originalism or “framework originalism” (as opposed to “skyscraper originalism” (i.e., conservative originalism)). Conservative law professors John McGinnis and Michael Rappaport call their approach “original methods originalism” which they prefer to “constructionist originalism” (which is just a synonym for liberal originalism).  There is Vasan Kesavan and Michael Paulsen’s — the latter once called his fellow law professors “persons of violence” for their support for abortion rights — awkwardly-termed “original, objective-public-meaning textualism.” Solum calls his non-ideological approach “semantic originalism.”  Richard Kay insists that originalism should turn back to its intentionalist roots.  Barnett has famously advocated for a libertarian brand of originalism.  The disillusioned Smith at one point called for “old-time originalism.”  Now, however, he wants original decisions originalism because of Balkin’s progressive presence.  (And this is to say nothing of the “new textualism” which is not much more, crudely put, than liberal academic lawyers‘ rhetorical response to Justice Scalia’s argument for textualism).  But if all these members of the originalist “family” can arrive at such disparate results, a paternity test is needed.  A family resemblance between Balkin’s, Barnett’s, Solum’s and (say) Paulsen’s approach is difficult to see.

And Smith’s essay shows how all three of the “crisis” points meet.  I am not the first to point out that once the interpretation/construction distinction was made, this allowed for the smuggling in of theorists’ normative cum ideological predilections.  More accurately, this allowed for Balkin’s and Barnett’s, most prominently, versions of liberal and libertarian originalism.  As many have noted — including some originalists — while not necessarily as uncabined as living constitutionalism was in the law reviews of the 1970s, there may not be much meaningful difference between the two approaches as clever lawyers could devise a reasonable construction for their preferred outcome.

This is of course why (the conservative) Smith wants to press the reset button on new originalism — to reclaim the theory for conservatives.  As noted above, his approach is to ask if “the enactor” of an amendment or law would be surprised to learn of the interpretive gloss proffered by “unelected judges” and, if so, the judiciary should defer to “our elected representatives.”  This move should be familiar: it is not much more than an attempt to ratchet back down the levels of generality (as Kerr has hinted at).  This is a debate that harkens back to the 1980s and 1990s.  This is also a debate that has been had — and lost — by originalists (and was one of the internal factors that led to the coalescence around new originalism).

Moreover, while Smith attempts to give his account the patina of theoretical sophistication and objectivity, the veneer is quite thin.  An appeal to the “democratic process” to cabin “unelected judges” simply shows that Smith is not familiar with the relevant scholarship on these topics. As Lawrence Jacobs and Robert Shapiro have shown in their book Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness, politicians, activists and other elites actively work to shape public opinion, not vice-versa.  Furthermore, Martin Gilens’ and Benjamin Page’s recent paper is a strong first step in demonstrating that elites, with some caveats, have an outsized influence in achieving the policymaking goals they support. Terri Peretti has made an interesting if contestable normative argument that a political court extends the dialogue of the democratic process.  Tom Keck has recently shown the empirical reality of courts’ decisions in contested hot-button issues (e.g., same-sex marriage and abortion) and how both liberals and conservatives use the judiciary as another tool to enact their preferred policies.  The list could go on, but the point here is this: unless and until originalists incorporate this work or at least grapple with it, they give “non-originalists” no good reason to take originalism seriously.

There is also the problem of history.  In 1997 — now 18 years ago — eminent Revolutionary-era historian Jack Rakove published Original Meanings: Politics and Ideas in the Making of Constitution.  It won the Pulitzer Prize.  Rakove wrote:

But if originalism could thus be defended as a neutral mode of interpretation, the temptation to resort to it was manifestly political. It was dictated not by prior conviction that this was the most appropriate strategy to ascertain the meaning of the Constitution but by considerations of partisan advantage . . . . It merely demonstrated that the neutrality could rarely be attained when the Constitution was so highly politicized, or when politics was highly constitutionalized (p. 365).

I am aware of only one originalist who even bothered to grapple with Rakove’s scholarship — originalist law professor Saikrishna Prakash who simply side-stepped Rakove’s historical evidence in a book review.  As I have noted:

Saikrishna Prakash tellingly stays away from confronting Rakove’s central point that it may be that constitutional interpretation cannot be practiced in the manner originalists seem to want to believe it can. Rather than dealing with Rakove‟s evidence that the Constitution is not always amenable, even at a few years removed, to the new originalism’s heuristic, Prakash writes that his “Default Rule” of interpretation—construe (almost) all communications using their original, ordinary meaning—is the “universal” method of interpreting just about anything. In fact, according to Prakash, the very fact of “the Constitution’s very existence as law” supports the Default Rule because it is a “background” rule much the same as reading from left to right (at least in English).

In other words, Prakash’s argument consists of resorting to “originalist speak” and simply citing to other conservative legal academic scholarship for “support.”  (This, unfortunately, is typical of much originalist scholarship, especially the apparently tight-knit group of Prakash, Paulsen, Rappaport, McGinnis, Gary Lawson, Nelson Lund, John Yoo and Vasan Kesevan).

To his credit, Solum has attempted to give more analytical rigor to new originalism and largely refrains from making the law office history arguments that many originalists engage in.  But Solum’s semantic originalism — which relies on his reading of linguistics and the philosophy of language, neither of which Solum has any training in — may not be as rigorous as many new originalists would have it.  (Solum has published extensively on originalism and runs the influential Legal Theory Blog which acts as a semi-clearinghouse for much legal scholarship). Prominent historian Saul Cornell has engaged with the new originalism and has been devastating in his arguments.  (See here, here, and here).  Solum has responded, but his arguments do not appear to answer the central challenge Cornell has set forth: is originalism, as currently conceived or practiced, capable of doing the intellectual work its proponents think it does (or can)?  The jury may be out on this debate, but a verdict is looking increasingly likely.

Originalism, then, has not actually become more sophisticated (as many of its proponents like to say).  Nor does it, as Barry Friedman and Sara Solow have noted, take a theory to beat a theory (again, as many originalists like to say).  This is especially true when the theory is as insubstantial as originalism in any current form. Smith’s discontent has given up the ghost: originalism is a failed theoretical project because it was never much more than a (conservative) ideological project to begin with.*  Whether one wants to label it original decisons originalism, original methods originalism, or “Batshit Crazy Quasi-Originalism,” it doesn’t much matter. Indeed, it is telling that most originalists continue to ignore insights from other disciplines — this is because most originalists like their theory the way it is: a stalking horse for substantively conservative decisions from the federal judiciary.

To return to Kuhn’s insight — a prospective obituary for originalism:

. . . . Originalism was suspended in a state of “crisis” until a new “non-originalist” theory came to take its place as the New Right regime, to which originalism was inextricably intertwined, began to crumble.  Originalism was, by and large, a conservative ideological project whose devotees remained (mostly) willfully blind to historical and political science scholarship until the legal academy came to recognize that only so many theoretical “holes” could be patched up with a new jargonized name for what was substantively the same theory.  In the end, besides the problem of being an ideological endeavor, originalism fell out of fashion because it lacked the rigor necessary to support the triumphant claims made on its behalf.

*One might accuse me of overlooking Balkin here.  But Balkin has been upfront about his normative goals and has simply argued that his theory is more faithful to the Constitution.  One can accept or reject Balkin’s approach on its own merits — he does not pretend to have been the first law professor to discover a “truly” neutral and objective theory of interpretation.