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.

How Might the GOP’s Dissensus on Law and Order Affect the Court?

Late last year, the New York Times had an interesting piece on how criminal justice issues (“law and order”) have begun to divide Republican elites.  The article spends a fair amount of time on Senator Rand Paul.  Paul, an apparent 2016 GOP hopeful (though Bloomberg‘s Jonathan Bernstein believes he is a long-shot), has been invoking criminal justice issues for some time as a way to differentiate himself from the Republican field. Indeed, Paul penned an op-ed in Time that largely signs onto criminal justice policies associated with Democrats. But the split goes beyond Senator Paul. The New York Times piece reports:

“It’s not as clear-cut of an issue as it has been in the past, and there’s a pretty significant diversity of opinion in the party,” said Lanhee Chen, Mitt Romney’s policy director in 2012, about Republican views on crime and justice.

Newt Gingrich, the Times tells us, also has some misgivings about the GOP’s long-time support for certain policies — e.g., mandatory-minimums, controversial policing practices, and the general rise of the carceral state — that are now being scrutinized in the popular press as policy failures (though scholars from many social science disciplines have been calling attention to these issues for some time).  Charles Koch, the famous libertarian donor-cum-fundraising ringleader, also plans to highlight criminal justice issues this year.

However, other Republican opinion leaders like John Bolton dismiss this rethinking:

“What some who call themselves libertarians are doing, whether it’s on national security or these other issues, is in reality much closer to the Democrats, and that’s why they’re getting such national attention,” said John R. Bolton, a former United Nations ambassador, in a phone interview, saying Mr. Paul “has a lack of history and education” on crime-related issues.

Likewise, Rudy Guiliani has been outspoken on the recent tumult regarding the shooting death of Michael Brown in Ferguson and Eric Garner’s death at the hands of the Staten Island police. Giuliani believes, or is at least willing to say, that President Obama’s “anti-police rhetoric” contributed to the shooting deaths of two Brooklyn police officers by a Baltimore gunman on December 20.

Without explicitly highlighting this internecine dispute as a “wedge issue,” the Times does hint that Paul’s actions are consistent with what we know about wedge issues — Senator Paul using a cleavage point issue in an attempt to entice committed liberals to vote Republican on the basis of his conception of law and order/criminal justice issues (Hillygus and Shields 20008).

But the issue of interest to students of the Court is whether this infighting signals a rethinking of the law and order issue on the Right and whether the GOP elites’ dissensus is a crack — perhaps an important one — in the New Right regime that has emphasized the issue and largely nominated law and order conservatives to the Court (Clayton and Pickerill 2004).  One can trace the law and order issue (at least the modern form, Weaver 2007; Gottschalk 2006; McMahon 2011) back to (most of) Nixon’s appointees and continuing through to Justice Alito’s nomination.

That is to say, the better way to look at these rumblings on the Right, is not whether a long-shot candidate like Paul — who is a long-shot in part because of his heretical views on criminal justice policy that many party elites would have to accept, on some level, in the invisible primary in order to accept Paul as their candidate in 2016 — can use law and order as a wedge issue to attract otherwise Democratic voters, but of issue evolution (Carmines and Stimson 1989) such that Democratic politicians and elites can use the issue of criminal justice reform against Republicans to their electoral advantage (just as Republicans have wielded law and order as a cudgel).

Should the Democrats, taking advantage of the Right’s fracturing on the issue, successfully transform “law and order” rhetoric into “criminal justice reform” as a meaningful electoral issue — and this is by no means inevitable — there will be consequences for the Court’s criminal justice jurisprudence.

In the near-term, if the Court’s current New Right appointees do not heed the putatively changing politics, there may be “Court-curbing” mechanisms that legislators will wield (Clark 2011). One can make the case that Paul’s Time op-ed is an early, probably efficaciously premature, warning shot denoting that certain elites care about this issue: Paul explicitly mentions racially disparate sentences and felon disenfranchisement. Either claim can be easily constitutionalized/legalized as an equal protection or Voting Rights Act violation by public-interest litigators and criminal defense attorneys as a legal attack on these policies (Keck 2014).  The intellectual framework for these legal arguments already exists but has few takers in the federal judiciary (see, e.g., Sklansky 1995). [N.b., the claim here is not that Paul’s op-ed is explicitly Court-curbing, but that it is an early warning signal].

Longer-term change to the Court’s rulings would come from what we know about “political entrenchment” (Gillman 2006) and what Jack Balkin calls “idelogical drift” (Balkin 1993).  What racial equality really means would shift under this scenario.  That is, racial equality would come to mean, as it does not today, that racially disparate sentences are unconstitutional.  The hegemony of the color-blind jurisprudential regime that has helped constitutionalize law and order ideas into Supreme Court precedent would face doctrinal death, most likely as a process of distinguishing away inconvenient precedents or stealth overruling.  In this scenario, perhaps once SCOTUS signals a willingness to revisit some of its law and order precedents, the lower courts will take more seriously the equal protection claim of a Black criminal defendant (Keck 2014).  Or perhaps a district court judge, faced with the weight of actually sentencing a defendant, may be the first domino.  (A number of lower federal court judges have already signaled their frustration with the sentencing process).

As of right now, these types of legal arguments have not gotten much traction (see here for decisions from the Second, Sixth, Ninth and Eleventh Circuits rejecting such claims).  But should we later see a resurgent progressive political and judicial “revolution” vis-a-vis criminal justice, we might be able to point to the increasingly fractious GOP elites’ position on law and order as the clue that criminal justice’s worm had turned.

Does the GOP’s Midterm Success Mean that the ACA is Doomed?

As the legislative terrain changed last Tuesday with significant GOP victories in both Congress and down-ballot races (the latter of which will probably have more consequence insofar as actual governing is concerned), perhaps so did the Supreme Court’s thoughts on whether to grant cert in King v. Burwell. What we do know is this: last Friday at least four justices voted to grant cert in the latest challenge to the Affordable Care Act, popularly known as Obamacare.

Conservatives are cautiously optimistic about the grant of cert.  Jonathan Adler, a libertarian law professor, has been the intellectual driving force behind this statutory challenge to Obamacare.  (Randy Barnett, another libertarian law professor, was the legal strategist behind NFIB v. Sebelius, the constitutional challenge to Obamacare that was narrowly rejected in 2012).

For their part, liberals are not so sanguine about the Court’s decision to hear the case. Indeed, there are already pieces in forums like the The New Republic talking the left off the edge. Jeffrey Rosen, something of the left’s legal public intellectual, has a piece in the same outlet that reads like it was written directly to and for Chief Justice Roberts to consider before making up his mind about King.*

Both sides are claiming that King is an easy case.  Conservatives allege that the issue is simply a matter of textualism — the relevant provisions at issue mean what they say. Q.E.D.  Liberals are also arguing that King is an easy case once one takes the ACA’s language, purpose and structure into account.  (I’m not going to get into the details of the relevant statutory provisions, the IRS Rule, and their interaction here; SCOTUSblog is hosting a Symposium with both sides setting forth their arguments in detail).  Each side has also pointed to their favored Supreme Court statutory interpretation opinions that putatively resolve the case in a manner consistent with their preferred result.

And the tea-leave reading and vote counting have already begun. Commentators have pointed to Justice Scalia’s longtime dissatisfaction with legislative history and his fealty for textualism as the best method of statutory interpretation. Indeed, Scalia wrote a book with legal-writing expert Bryan Garner espousing the benefits of textualism. (Judge Posner, with typical aplomb, castigated the book setting off a mostly one-sided (Scalia) war of words). Conservative Washington Post columnist Jennifer Rubin quotes John Yoo making this point:  “[Justice Kennedy] was strongly in the dissent [sic] against Obamacare two years ago, and I cannot see him engaging in legal gymnastics to save a law he thinks is already unconstitutional.”  The takeaway from the vote counters seems to be this: four justices, at least, granted cert because they are sympathetic to this challenge to Obamacare — which would effectively gut the statute — and that, once again, Chief Justice Roberts will cast the deciding vote on Obamacare.

Maybe, maybe not; it’s certainly intuitively pleasing.  But if we step back from the partisans’ arguments, perhaps we can have a more informed analysis.  A forthcoming paper by two political scientists — it is in the peer-review stage — shows that the Court is basically a majoritarian institution when it comes to invalidating federal statutes.  That is, the Court is much more likely to invalidate an important federal statute — important as defined by David Mayhew (Mayhew 2005) — that does not have support from the sitting Congress.  This effect is seen both at the cert stage and merits stage. At the merits stage, the Court is less likely to invalidate federal statutes that are supported by the pivot member of Congress.

Almost needless to say, the ACA is an important federal statute.  And the findings above do not bode well for the continued vitality of the ACA.  It is almost certainly not lost on the anti-ACA justices (Kennedy, Scalia, Thomas and Alito) that there will be no congressional override if they vote consistent with their policy preferences in King.  And, in the face of four years of legislative gridlock, with two more to come, perhaps the Court feels emboldened to do as it pleases without worrying about congressional repercussions.

However, the ACA is not simply an important federal statute — it’s also the most important piece of social legislation in a generation (at least).  We also know that the Solicitor General, the so-called “tenth justice,” has an impressive winning percentage in the Court (Bailey et al. 2005). Moreover, Keith Whittington has argued that the Roberts Court has been less activist than prior iterations (Whittington 2014; cf. Clayton and McMillan 2012).  And according to sources inside the Court, Roberts switched sides in NFIB v. Sebelius, because he was worried about the Court’s institutional image should it strike down Obamacare on a partisan vote (Crawford 2012).  Finally, while we know that Kennedy is the most activist member of the Court — using the rubric of votes to strike down state and federal legislation — it seems worth noting that Kennedy is not a textualist but employs an idiosyncratic jurisprudence (Collucci 2009).  Yoo may be off the mark: it may be that the legal gymnastics Kennedy would have to jump through to strike down the ACA would be too much for the enigmatic justice.

In sum, while there is good reason to believe that the Roberts Court, unconstrained by the Republican Congress, may give the (perhaps dying) New Right regime a significant victory it was not able to achieve electorally, there are also ample non-quantifiable reasons to believe that the Court will refrain from taking that drastic step.  Either way, the Court is going to resolve a significant political controversy.

* The pair have a history, so to speak.

Judicial Restraint and the Denial of Cert in the Gay Marriage Cases

Since the Supreme Court denied cert to a number of petitions in the marriage equality cases (or same-sex marriage, if one prefers), it has been almost as interesting to watch the reactions from pundits, court Kremlinologists and law professors as the event itself that sparked the responses.  Liberals, like Slate‘s Dahlia Lithwick, are disappointed that the Court failed to write the gay marriage opinion and kicked the can down the road.  Law professor Robin Wilson feels much the same.  Meanwhile, National Review‘s Matthew Franck provocatively compared federal courts finding a constitutional right to same-sex marriage akin to Dred Scott, while Ed Whelan is more interested in reading the tea leaves behind the Court’s cert denial, but notes what he feels to be the resignation of the conservative justices on this issue.  Founding member of the Federalist Society and accomplished law professor Steven Calabresi argues that while he supports marriage equality in principle there is a no federal jurisdiction for courts to hear these cases.

The liberal critique is predictable.  At bottom, they are insinuating, if not outright stating, that the Court has a job to do: decide the cases that come before them.  In reality, liberals simply want the Brown or Roe of the gay-rights movement.  It will be interesting to see if liberals are as eager for the Court to grant certiorari in the Texas abortion case, which will require review of the stringent restrictions on the availability of abortions in Texas.  Will liberals be calling for the Court to do its putative job or will be they wondering if they can count on Justice Kennedy to write Casey redux? It is reasonable to assume there will be more liberal angst about the Court’s work under those circumstances.

The modern Supreme Court, as Tom Keck has shown, has been the most activist in history (Keck 2004). (Keith Whittington has argued persuasively that the Roberts Court has been less activist than than Rehnquist and Burger Courts (Whittington 2014)).  It even had the institutional confidence — some might say arrogance — to decide the 2000 election for the country on shaky legal grounds.  Not so long ago, liberal legal scholars found themselves calling for the Court to restrain itself (Tushnet 2000, Kramer 2005).  One might think that the Court restraining itself and letting the (remarkable) progress of the LGBT litigation campaign play itself out in the lower federal and state courts would be a welcome change.  Instead, the liberal response to the Court’s restraint was premised on the likelihood of feel-good “win” in the culture wars.

On the other side of the coin, it is difficult to take seriously Franck’s comparison of the as of-yet hypothetical gay marriage decision as akin to Dred Scott — this feels like what has been called “click-bait” and Franck’s post appears to be literally baiting liberals.  Professor Calabresi’s federal jurisdiction argument, conversely, is a serious legal argument.  But, once one digs down, it reads more like an amicus brief to the Court. Perhaps I’m wrong, and perhaps Calabresi has recognized a jurisdictional issue that no other federal court judge or litigant has, but this seems unlikely.  In any event, as a matter of empirical reality, it seems to be tilting at windmills.  If the jurisdiction issue had legs in regard to the latest round of circuit court cases, it would have been jumped upon by conservative federal appellate judges — few thoughts are sweeter to an appeals court judge that does not want to pass on an issue on the merits than “jurisdiction” and “waiver.”

Conservative resignation over the issue is probably the appropriate reaction to what is happening on the ground, but liberals should be careful what they wish for.  For a Court that has not shown itself shy to inject itself into debates — at least with Whittington’s caveat — this act of restraint should be noted.

Context Clues and Attitudinal Outliers

There are a number of modern Supreme Court cases that scholars have pointed to as putatively confounding. They do not line up with the notion of a political court deciding cases along predictable ideological lines. How can these outliers be explained?  One path usually not taken is to look at the contextual details surrounding the cases that provide clues as to why the justices are bucking the attitudinal trends.

A prominent example is Texas v. Johnson, where an ideologically-mixed majority overturned a flag-burner’s criminal conviction on First Amendment grounds.  For example, scholars note, Justice Scalia voted to overturn a criminal conviction, and Justice Stevens voted anomalously to uphold the conviction in the face of a First Amendment challenge.

These votes are certainly a departure from the overly simplistic attitudinal model.  (The attitudinal model already has four established exceptions to it in the literature — law and policy (Bailey and Maltzmann 2011), strategic considerations (Epstein and Knight 1998), identity, and, most recently, personal relationships and experience (Glynn and Sen 2014) — and Matthew Hall is working on a paper that will add yet another exception to it).

But what rarely gets mentioned when discussing Johnson is that Justice Stevens served in World War II as a young man, and this service almost certainly left an indelible impact on him about the meaning of the flag. Scalia did not write an opinion in Johnson, but he continually touts it as an example of his apolitical voting (the statistical evidence much to the contrary).

Yet, if Scalia really “hated,” as he alleges, the result so much in Johnson, then one must question why he voted against, for example, the First Amendment rights of a high school student who was suspended for holding up a sign that read “Bong Hits 4 Jesus” (Morse v. Frederick), a seemingly much more innocuous message than Johnson’s.  This latter vote is in line with what we would expect from a conservative justice like Scalia.  Without devolving into pure speculation, it seems plausible that Scalia viewed Johnson as an ideologically “cheap” vote which he could use as a putative example of his non-ideological voting.

(It is interesting to note Congress’s “response” to Johnson.  “Response” is in scare quotes because the federal legislation — it passed 371 to 43 in the House and 91-9 in the Senate — was symbolic, costless legislation to the members who could show their patriotic bona fides to constituents who might be upset by an “activist” Supreme Court ruling).

Another prominent example is Dickerson v. United States which presented the Court with an opportunity to overturn Miranda v. Arizona.  However, the conservative Court did not do so, and Chief Justice Rehnquist wrote the opinion upholding Miranda.  This case is not so much of a surprise, however, if one looks at it context.  As I have noted:

For example, Dickerson v. United States — a 2000 challenge to a Nixon-era federal law that statutorily overturned the Miranda decision, but one which federal prosecutors never utilized — was not simply the Rehnquist Court upholding a Warren Court criminal procedure decision.

It was, instead, as Justice Rehnquist realized, the cultural purchase and importance of Miranda, a decision whose contents had become known to most everyone through television police procedurals and the like, that saved it.  A decision striking down Miranda would have had high salience with the larger public who generally pays little attention to the Court.  What is more, the Court had already hollowed out Miranda to the point that it was a shell of its Warren Court self.  Put simply, there was no need to explicitly and publicly do what the Court had accomplished through other, lower-salience means.

It was also a chance for Rehnquist to assert the Court’s constitutional supremacy, at least rhetorically, over Congress.  Rehnquist wrote that “[w]e hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”  It was not surprising, however, that Justices Scalia and Thomas, in dissent, advocated expressly overruling Miranda (which may have been the more intellectually honest result).

Yet another seeming anomaly is the sentencing guidelines line of case — e.g., ApprediBooker — where the liberal Justice Breyer votes in favor of the guidelines against what we would expect: a pro-criminal defendant vote.  Here again, what is rarely mentioned is that Justice Breyer helped write and shepherd the sentencing guidelines through Congress.  Although he has been critical of the mandatory minimums aspect of the guidelines, the most reasonable explanation is that Breyer has an obvious vested interest in saving his creation.

Similarly, Scalia’s confrontation clause revival — again, cited as an area where Scalia “surprises” by voting for the rights of criminal defendants — is perhaps best seen as an area of law that does not produce very costly political results for the conservative justice — the federal criminal trial is dead to all but those who are well-off, and even state trials are rare — and allows Scalia to trumpet originalism, a move he does not make when the political costs are much higher, as in affirmative action cases. (N.b., as the late William Stuntz noted, Scalia’s confrontation clause jurisprudence is the epitome of the triumph of form over good policy substance).

All of the above could be dismissed as mere anecdotes.  “After all,” as Bailey and Maltzmann write, “we can just as easily produce stories of justices voting against legal doctrines in favor of their presumed policy preferences.”  But this doesn’t seem quite right — the reasons the anomalies are of interest is because, after all, they are anomalies they do not follow the received wisdom.  What I intended to accomplish in this short post was show there are usually rather plausible reasons other than legal, strategic or political reasons why justices vote the way they do.  Lawrence Baum and Neal Devins have persuasively shown the influence of sociological factors on the Court.  By understanding the justices in their full context, the cases that might surprise us can make more sense.

Thinking about Rethinking Regime Politics

Eric Posner, son of renowned jurist Richard Posner and a formidable legal scholar in his own right, reviewed Kevin McMahon’s then-new book (Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences), for The New Republic in 2011, and cheekily noted:

Political scientists take a more Olympian view. For them, justices are wind-up toys set in motion by the president who selects them: they totter down a path determined by the president’s political agenda. If you do not like Justice Scalia’s opinions, then you should blame President Reagan, who appointed him, not Justice Scalia.

This is a somewhat simplistic view of the regime politics literature, but it hints at something deeper.

The pith of the regime politics literature is this: “[r]ather than a check on majority power, the federal courts often function as arenas for extending, legitimizing, harmonizing or protecting the policy agenda of political elites or groups within the dominant governing coalition” (Clayton & Pickerill 2005).  However, in 2007, Tom Keck issued a warning.  In his article Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools, Keck took note of a perhaps reductionist tendency in the regime politics literature (particularly by legal academics), the same reductionism that Professor Posner hints at.

Following up on this, in 2012, Matthew Hall laid down a gauntlet. In an article titled Rethinking Regime Politics (gated version here), Hall, utilizing the universe of cases where the Court had struck down federal legislation, found little support for one of the central claims of regime politics scholarship (a conservative Court supporting the New Right regime).  Hall noted that his study was only one slice of the pie; he did not examine cases where the Supreme Court upheld federal legislation or struck down state laws, among other possible avenues.  But, no doubt, Hall’s article is a challenge to regime politics scholars, a body of scholarship I find rich and persuasive.

Before I wave the white flag, however, I would mildly quarrel with Hall in some of the examples he uses to critique the regime politics literature as cases contrary to the expectation of “a conservative Court serving the conservative regime.”  For example, Dickerson v. United States — a 2000 challenge to a Nixon-era federal law that statutorily overturned the Miranda decision, but one which federal prosecutors never utilized — was not simply the Rehnquist Court upholding a Warren Court criminal procedure decision.

It was, instead, as Justice Rehnquist realized, the cultural purchase and importance of Miranda, a decision whose contents had become known to most everyone through television police procedurals and the like, that saved it.  A decision striking down Miranda would have had high salience with the larger public who generally pay little attention to the Court.  What is more, the Court had already hollowed out Miranda to the point that it was a shell of its Warren Court self.  Put simply, there was no need to explicitly and publicly do what the Court had accomplished through other, lower-salience means.

In any event, the “contingencies of history” aspect of APD certainly has not escaped regime politics scholars. Jack Balkin, for example, pointed this out in a fascinating post when Robert Bork passed away: the what if(?) Bork had been nominated before Scalia and the concomitant consequences for constitutional doctrine.  As Balkin notes, Roe v. Wade almost certainly would have been overturned (whether Casey would have been the legal vehicle is of course impossible to know).  And if that version of the Rehnquist Court had overturned Roe, would the regime politics literature then say that overturning Roe was consistent with the New Right regime’s continual criticism of Roe as standing for everything that was/is wrong with constitutional law?  The question lingers.

What is more, the counterfactual game can be stretched back further and more problematically.  In performing research for the paper I have forthcoming in Constitutional Commentary, it served as a useful reminder how contingent many Supreme Court appointments were.  President Bush’s first choice to replace Justice Brennan was not David Souter, but the (very) conservative Fifth Circuit Judge Edith Jones.  Nixon did not even know how to correctly pronounce William Rehnquist’s name (“Renchburg” and “Renchquist” he was caught saying on tape), and, as Kevin McMahon detailed in the above-referenced book, Senator Howard Baker (R-TN), almost took Rehnquist’s seat on the Court.  Keith Poole and Nolan McCarty point out that Baker was a model moderate conservative (the “Great Conciliator”).  In other words, he certainly would not have been the arch-conservative Justice Rehnquist turned out to be.  Indeed, Baker died this year, thus outliving Rehnquist by almost a decade.  One can imagine (but only imagine) that he would have been a conservative bete-noir.

And there are more counterfactuals.  What if Lyndon Johnson had not dropped the ball with Fortas’s nomination to replace Chief Justice Warren?  The conventional story of how the Burger Court rolled back some of the Warren Court’s jurisprudence (especially racialized issues) would have not happened — indeed, there would have been no Burger Court at all, but the Fortas Court. Had Richard Nixon not been forced to resign, would Justice Stevens, nominated by Ford, even been on the appointments radar, and would his seat have gone to a more conservative justice?  What if Jimmy Carter been able to appoint at least one justice?

On the other side of the coin, it is sometimes difficult to discern the reasons for the attitudinal model’s continued reign.  Lee Epstein, Richard Posner and William Landes powerfully critique the theory in their latest book.  Continued adherence to viewing judicial politics solely through the attitudinal model is today the equivalent of why the model was created in the first place: to give lie to the notion that the justices were simply “doing law” (i.e., legal formalism) on the Court. The script, as it were, has flipped.

But it might be said that the attitudinal model was a victim of its own success. It is now so widely accepted that political preferences play a role on the Court (though not to the extent the Segal and Spaeth had it), that the attitudinal model per se, or, by itself, is not much more than an analytical jumping-off point or a (partial) given.

So where does this leave this us?  While Hall’s challenge to the regime politics literature is stout, I suspect that the regime politics literature would be vindicated if one empirically examined what happens when the Court strikes down (outlier?) state laws.  But mere instinct is not enough.  This is fertile territory for a marriage of APD and quantitative work.

The Clock May Be Ticking on Affirmative Action

In 2oo3, a sharply divided Supreme Court upheld the University of Michigan Law School’s affirmative action program.  Justice Sandra Day O’Connor, at the time the high Court’s swing vote, wrote that she hoped “25 years from now, the use of racial preferences will no longer be necessary.”  However, the current Supreme Court may very well cut that timeline in approximately half.

Recently, a federal court of appeals upheld, for the second time, the University of Texas’s undergraduate affirmative action program.  The court of appeals had previously been scolded by the Supreme Court for not making a more searching inquiry to determine if the university could have utilized an admissions process that took race into account less prominently (or not at all).  The Supreme Court’s decision sending the case back to the court of appeals also tightened the noose on affirmative action in the higher education context by instructing lower courts that the government — here, the public university — should be given little to no deference justifying its use of race in admissions.

On the second go-around, the court of appeals attempted to placate the Court.  In a lengthy opinion, the court of appeals scoured the record and determined that Texas’s use of race was “necessary” and there was a “want of workable alternatives that would not require even greater use of race.”  Moreover, the court found that the plaintiff, Abigail Fisher, would not have been admitted to Texas in any event, race-conscious program or not.  Fisher has since graduated from Louisiana State University.

However, the court’s three-judge panel was split 2-1, with the most conservative judge dissenting (two of three judges were appointed by Republicans).  Judge Garza criticized the majority for not recognizing the Supreme Court’s “new” approach to affirmative action in higher education and stated the he would have found Texas’s program unconstitutional.

Both opinions seemed designed to appeal to Justice Anthony Kennedy.  Critically, Justice Kennedy dissented in the Michigan Law School case and it was he who wrote the Supreme Court’s opinion the first time the Texas case came before the high Court.

For her part, Fisher has stated that she is committed to her lawsuit and will likely ask the Supreme Court to review the court of appeal’s latest decision.  And therein lies the rub.  There are four justices — Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito — likely to vote to strike down Texas’s affirmative action program.  If Justice Kennedy is not pleased with the court of appeal’s second effort there is a likelihood that affirmative action in higher education will be ruled unconstitutional. The Roberts Court has a history of warning government actors before it rules against them.  For example, the Court’s majority, before striking down a portion of the Voting Rights Act, had explicitly warned Congress in a previous ruling that it found certain of the Act’s provisions problematic.  Here, Justice Kennedy has already issued his warning regarding affirmative action, it may very well be that he follows through on it.

Rethinking Justice Scalia’s Legacy

Bruce Allen Murphy’s new biography of Justice Scalia offers an opportunity to think about Scalia’s legacy and his place in Supreme Court history.  Murphy’s book is far from perfect — it engages in too much psychoanalysis of Scalia, seems to believe that Scalia could have crafted a consistent five-vote conservative majority if he had simply been more congenial to Justices O’Connor and Kennedy,* and is off-base regarding Scalia’s alleged evolution in his constitutional thinking. That said, the book is deeply researched and a useful first stab at a biography of Scalia that is not hagiography.**


*It is difficult to discern why Murphy, who teaches constitutional law (he’s a political scientist), would actually believe this. Murphy invokes Justice Brennan and the famous “rule of five,” but Brennan’s Warren Court colleagues were more ideologically cohesive. Justice Scalia is one of the most conservative justices to ever serve on the Court. Justices O’Connor and Kennedy simply were not as conservative as Scalia. No amount of congenial cajoling would have changed the results in, for example, Lawrence or Casey.

**There have been books written by Scalia’s ideological fellow travelers: e.g., a collection of Scalia’s dissents, described as the product of the “Supreme Court’s Wittiest, Most Outspoken Justice,” along with an unpersuasive sympathetic attempt to synthesize Scalia’s jurisprudence into a coherent whole.  And this seems as good a place as any to note that National Review‘s Ed Whelan, a former Scalia clerk, has brutalized, unfairly, Murphy’s book with personal, ad hominem attacks in a manner reminiscent of Scalia’s dissents.


Murphy’s conclusion is that Justice Scalia’s legacy will be originalism.  Murphy calls Scalia the “king” of the originalists. Murphy is far from alone on this point — almost every assessment of Scalia has focused at least in part on originalism. Among commentators, there seems to be no doubt that Scalia’s legacy will be the justice who did more than any other to give voice to this constitutional theory. Law professor Jamal Greene places Scalia at the center of the story of “original public meaning” originalism. Steven Teles tells the story of of how Scalia did away with original intent originalism at a Federalist Society meeting, opening the field for his coinage: original public meaning (the formulation most academic originalists now subscribe to). Scalia’s opinion in Heller is held up as the paragon of original public meaning originalism. Though maybe not the best reading of such, Justice Stevens’ dissenting opinion in Heller was also remarked upon as an attempt to best Scalia at his historical game. Scalia himself has deemed Heller his “legacy opinion.”

But it would be myopic to focus solely on Heller and Scalia’s earlier originalist forays. Though Scalia has been on the Court for nearly three decades, he returns to the same themes in his opinions again and again. Consider these excerpts from Scalia’s lengthy dissent in Casey:

But the Court does not wish to be fettered by any such limitations on its preferences . . . . The emptiness of the “reasoned judgment” that produced Roe is displayed in plain view by the fact that . . . the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. . . . It is not reasoned judgment that supports the Court’s decision; only personal predilection.

Consciously or not, the joint opinion’s verbal shell game will conceal raw judicial policy choices concerning what is “appropriate” abortion legislation.

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges — leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals” — with the somewhat more modest role envisioned for these lawyers by the Founders.

Scalia on abortion does not differ much from Scalia on another hot-button culture war issue: LGBT rights. Here are some excerpts of Scalia’s thoughts on Justice Kennedy’s majority opinion in Lawrence v. Texas:

There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it . . . . What a massive disruption of the current social order, therefore, the overruling of Bowers entails . . . .   It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed . . . What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change . . . .  But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Fast-forward to a little over a decade later, and Scalia’s criticism was substantively the same. As Scalia wrote in dissent in United States v. Windsor regarding DOMA:

All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

And Scalia’s legal realism, nearly always pointed in the opposite ideological direction, is repeated in the death penalty context in his dissent in Atkins v. Virginia:

Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

A veritable mountain of similar excerpts are available — as noted above, Scalia has been on the Court for nearly 30 years. One can see that beyond originalism, Scalia’s leitmotifs are the “imperial judiciary,” justices simply voting their policy preferences, and the Court creating “new rights” out of whole cloth. In other words, Scalia has consistently argued for decades that the justices are attitudinalists (when they disagree with him). To the sympathetic public, which consists of Republican politicians, conservative issue activists, high-information GOP voters and other GOP elites, Scalia’s message is clear: liberal justices invent non-existent constitutional rights that we (read conservatives) do not agree with.  Of course, Scalia does not believe that he is voting his ideological preferences, but this is largely beside the point, and not just because his conservative audience does not either.

And Scalia’s opinions seem designed to reach this audience. That is, rather than writing for the history books as Justice Kennedy seems to do, Scalia’s fiery rhetoric seems intended to land in the pages of the papers of record, Fox News, and the larger conservative media machine. Indeed, in a New York interview Scalia revealed that his “media diet” largely consists of right-wing news outlets. Scalia is a skilled rhetorician and knows how to turn a phrase — often a superfluous learned reference (“Volk,” “kulturkampf,” “Marquis of Queensbury rules,” “hostes humani generis“) that will catch a journalist’s eye.

What is more, it is arguable that since Scalia’s putative but plausible “charm offensive” to be appointed Chief Justice failed in 2005, his rhetoric has been less restrained and more openly political. For example, in what appears to be dog-whistling, Scalia wrote in Brown v. Plata: “many [of the released prisoners] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”  This rhetoric — pointless to any legal issue — seems meant to create a specific, if largely anachronistic and inaccurate, mental image in the reader’s mind.

Another example. Judge Richard Posner, who has emerged in recent years as one of Scalia’s harshest critics (Scalia has retorted, somewhat lamely, by pointing out that Posner is only a court of appeals judge), took Scalia to task for his oral dissent cum remarks from the bench regarding immigration in Arizona v. United States, a polarizing topic in the 2012 presidential campaign.  Scalia’s remarks were pointedly political in nature —  criticizing Obama’s immigration policy — and in line with the more conservative wing of the Republican party’s stance on immigration.  It seems difficult to view the remarks through any other lens than Scalia’s desire to inject himself into the political debate on immigration.

As the New York Times reported:

“He jumped the shark here,” said Gabriel J. Chin, a law professor at the University of California, Davis. “Harkening back to the ‘good old days’ of the law of slavery impeaches his position. He practically cited Dred Scott. The whole thing was intemperate, a screed.”

We might, then, begin to reassess what Scalia’s legacy will be. Originalism has, for now, claimed the mantle as the ruling theory of constitutional interpretation: “we’re all originalists now,” they like to say (a bit self-servingly, perhaps) or “it takes a theory to beat a theory” — the implicit claim being that originalism stands unchallenged. Even liberal legal scholars like Jack Balkin have hopped on the originalism bandwagon, creating a progressive articulation of originalism.  In sum, where ever one looks, Scalia’s stamp of originalism seems to have made an indelible mark on the legal world. This is why it is the received wisdom that Scalia’s legacy will be originalism.

But if both Jack Balkin and Antonin Scalia are originalists, the term has lost any real meaning beyond some vague thoughts about commitment to text and history. What we are really watching is a battle for control of the terms of constitutional theory and the concomitant debate — the originalists, the conservative ones, won the first few rounds, now the progressives are fighting back.  Balkin, to his credit, is explicit about this.  Indeed, the “new textualism,” another attempt to win control of the terms of the debate, was coined by liberal lawyer, Doug Kendall. Contra Greene, originalism is not becoming “depoliticitized,” it is becoming more politicized. What is more, if we pull back the constitutional theory curtain further, originalism, old and new, will eventually fade away as a scholarly movement, just like (say) neutral principles. Balkin hints as much in his own work that a new theory will take originalism’s place in a generation or so.

Thus, looking at Scalia’s historical legacy through a wider lens, it may be that his legacy will be the “king” of the conservative legal realists, a justice who has done as much as any other to give the attitudinalists succor that judging is no more than policy preferences dressed up in legal jargon. Put another way, Scalia might be more profitably viewed as a political entrepreneur who happened to wear a judicial robe, rather than as (merely?) an influential Supreme Court justice.

For example, in addition to the consistent themes in his opinions — where Scalia lashes the liberal majority for simply writing their own liberal views into the Constitution; nine (or five) unelected lawyers telling the “people” what is and is not permissible, while he stands athwart constitutional history yelling “Stop” (Scalia admired William F. Buckley, Murphy tells us) — Scalia rather plainly loves the extra-judicial limelight. As Murphy shows, in contrast to years gone by, Scalia has given his constitutional interpretation “stump speech” so many times that the media has largely ceased to cover it. The central theme in Scalia’s stump speech is that the Constitution is “dead,” in order to contrast himself to the (liberal) living constitutionalists (or non-originalists) who are creating or extending rights that various factions of the New Right are opposed to: abortion, limiting the death penalty, LGBT rights & c.

Indeed, Scalia, after 2001, in what seems to be no coincidence, unveiled a stump speech entitled: “Mullahs of the West: Judges as Authorative Expositors of the Natural Law?” Scalia’s speech analogized alleged “[liberal] judicial hegemony” with Islamic fundamentalism. This can be characterized as a more sophisticated form of conservative media entrepreneurs’ (e.g., Ann Coulter) rhetoric.  But Scalia is not above Coulterian rhetoric: Scalia has also labeled living constitutionalists “idiots.” The headline on Foxnews.com was: “Scalia: Non-Originalists Are ‘Idiots.'”

And when one examines the larger political discourse outside the Supreme Court, it is clear that Scalia’s extra-judicial speeches have had an effect on the conservative milieu. Rush Limbaugh riffs on and champions originalism.  James Dobson, of Focus on the Family and a leading social conservative leader, has endorsed originalism and textualism.  A group of political scientists and a law professor has shown that when polled, people who self-identify as originalists, take views on constitutional and political issues that are consonant with the Republican Party’s platform.  Reva Siegel and Robert Post have written an interesting article arguing that in the political domain originalism serves as the New Right’s own version of a living constitution. Finally, Scalia’s Romer dissent — where he contended that one should be able to support the Colorado amendment at issue without being accused of “bigotry,” and calling the majority’s view as “insulting” cultural conservatives’ views on morality — was picked up by then-Representative Charles Canady, a Republican who is now on the Florida Supreme Court.  Canady said in a floor speech: “We have heard that those who oppose same-sex marriage and those who support this bill are . . . bigoted, despicable, hateful, ignorant . . . I believe that those words are an insult to the American people . . . .”

Given this, perhaps Scalia’s chief contribution might be giving the New Right a lingua franca to talk about the constitutionalization of certain political issues. Perhaps all this shows how Scalia has helped create what Greene has called the “Republican or conservative brand,” of which originalism is now a component part.  Originalism — not simply the intramural debate in the academy — has become shorthand for conservative politicians, voters and activists for “Supreme Court decisionmaking I agree with.” Originalism’s ascendance tracks the ascendance of the New Right regime.  I would submit that its star will implode as the New Right regime begins to decay.

Scalia has been important to originalism, both by inspiring academics to write (more) about it, but helping inject the parlance into conservative parlance (with all apologies to Attorney General Ed Meese). But maybe Scalia’s legacy, at least a significant component of it, is that of a political entrepreneur who happens to wear a judicial robe — a star in the constellation of the New Right regime — rather than merely the “head originalist” or an influential American jurist.