Saturday, February 20, 2016

Originalism Can't Fade Away Because it was Never Really Here

By Eric Segall

A few days ago, Eric Posner wrote an essay suggesting that, with Justice Scalia’s death, originalism as a legal theory will slowly fade away. Generally speaking, he wrote, law professors write “scholarship with the hope and expectation that their work will influence public policy.” But, with only one Justice remaining on the bench who proclaims to be a serious originalist (Justice Thomas), and given Thomas' “idiosyncratic” voting patterns, neither Supreme Court litigators nor the other Justices will spend much time making originalist arguments. Inevitably, assuming the next Justice is not an originalist, which is likely, the only audience left for originalists will be themselves, and in the long run the motivation to write for each other will not be sufficient to keep the originalism flame alive.

Posner’s essay led to responses by Lawrence Solum, Michael Ramsey, and Jack Balkin.  I want to focus here on Balkin’s reply. Professor Balkin is one of our most influential legal scholars who has made enormous contributions to our understanding of the law and the Constitution. Unfortunately, his views on originalism have always been, to say the least, puzzling.

As he mentions in his reply to Posner, Professor Balkin has “skin in the [originalism] game” because of his book “Living Originalism.” No, that is not a typo. As I’ve written here before (and as Mike Dorf argued at length here), Balkin’s theory of originalism, which he says supports Roe, allows virtually any result in any case because he believes that identifying a provision of the Constitution as “vague” rather than “specific” is both an originalist move and one which then authorizes judges to use modern standards to decide hard cases.  Of course, that move makes originalism indistinguishable from “living constitutionalism,” and also makes history largely irrelevant to constitutional law litigation (which is how it should be).  Professor Balkin, a progressive, obviously prefers that history be largely irrelevant to modern cases so that we can move towards a more just and egalitarian society.

Balkin’s reply to Posner argues that “originalist arguments” will never go away for a number of reasons, including that judges rely on them in cases of first impression; judges use them to overrule precedent (law not values made me do it); and originalists arguments are so important to conservatives that “conservative think tanks, lawyers, and law professors will continue to talk, write, and argue in originalist terms, because originalism continues to provide them a common way of thinking about the Constitution and solving particular legal problems. The conservative movement is not about to abandon originalism, and as long as there is a conservative movement in the United States, you can predict that originalism will remain a powerful force in legal argument.”

All three of these replies miss the point. Yes, judges may well continue to trot out originalist evidence to support results they have reached on other grounds. But so what? They did that long before Justice Scalia or Judge Bork came onto the scene, as a way to use legal rhetoric to mask value choices. Balkin admits that “originalist arguments have been commonplace in the opinions of the Supreme Court of the United States from the country's inception, even if very few Justices have adopted originalism as a comprehensive theory.”

Balkin says that Scalia did more than use originalist arguments but actually embraced it as a “comprehensive theory.” Certainly Scalia said he did that but as I’ve argued before, and Mark Graber just wrote on Balkin’s own blog, in the real world Scalia “was a judicial activist who struck down laws based on a contemporary constitutional vision that he campaigned for aggressively in both legal and political settings.” In other words, even Scalia did not vote on an originalist basis and, as I’ve pointed out, neither does Justice Thomas. In this sense, I disagree a bit with (Eric) Posner because, as a result-generating device, originalism cannot fade away because it was never here to begin with.

The harder question is, without Scalia’s loud voice proclaiming over and over that the Constitution is “dead, dead, dead,” will the pretense of originalism be harder to maintain? Eric thinks so while Jack believes conservatives will continue to talk the talk. I’m not sure but I do know virtually no one outside of legal academia will care.

A good analogy would be critical race theory, which is an important part of the academy’s progressive culture and not likely to go away soon. There are conferences devoted to the topic, and it provides a common language for many. I suspect there are as many legal scholars devoted to critical race theory as originalism. 

I have significant sympathy for the critical race theory movement and agree with much of its descriptive and normative account. But, no one suggests that critical race theory drives results when cases are actually brought in front of real judges and, the sad truth, is that, outside of academia, who cares about critical race theory?

            The main difference between critical race theory and originalism is that the latter had Scalia and has Thomas singing its praises even if they didn’t vote accordingly, whereas the former doesn’t have a Supreme Court spokesperson. With Scalia gone, the energy for the theory among non-judges may well dissipate as Eric suggests. But, for real folks practicing real law in front of real judges and their clients, originalist arguments will be what they have always been, with or without Scalia, window dressing for judges and interesting fodder for academic debate.