Monday, April 04, 2022

Of Judge Jackson, Originalism, and a Tale of Three Scholars

 By Eric Segall

During her confirmation hearing, Judge Kentaji Brown Jackson seemed to self-identify as an originalist. She said the following: “The adherence to text is a constraint on my authority. I’m trying to figure out what those words mean, as they were intended by the people who wrote them.”

These comments, of course, were met with delight across the vast Federalist Society landscape and with despair among non-originalists of all stripes. The two best examples are a pair of essays by, on one hand, Professor John McGinnis, and on the other, Conor Casey and Adrian Vermule. Make no mistake, Casey and Vermule have the better of the argument by far.

Let's start with McGinnis. He delighted in Jackson's words, arguing that her testimony further entrenched originalism in our legal and political culture. He wrote the following:

Hers was a concise statement of originalism. Indeed, these words capture in shorthand form the two requirements with which Professor Larry Solum has defined originalism. The first is the fixation thesis: The meaning of the words is to be determined at the time of enactment. The second is the constraint thesis: A judge is constrained by the meaning of those words.

McGinnis was pleased that Judge Jackson "flew the originalist flag." He said her saying that originalism is our law (a claim McGinnis properly doubts given the Court's large body of non-originalist opinions), makes it more likely that originalism will be our law in the future. Moreover, "her public statement at the hearing contributes to a culture where originalism grows ever more respectable. As a result of its respectability, scholars will write more articles exploring the original meaning of clauses. These will be translated into briefs and oral arguments at the Supreme Court." 

Originalism should play such a role, according to McGinnis, because, among other things, Roe v. Wade "was only possible in a jurisprudential culture that did not put the meaning of the text front and center. Of course, not everyone will agree on what constitutional provisions mean, but a culture of originalism assures that such empirical debates, rather than appeals to values, will settle the law." 

McGinnis observed that Democratic senators did not push back strongly on Judge Jackson's statements (mostly for political reasons) and concluded that "beneath the din of partisanship, the Jackson confirmation hearings show that originalism is becoming our law, even if its contours remain up for debate."

Casey and Vermeule had almost the opposite different reaction to the hearing. So did Mike Dorf. Because Mike focused mostly on the hypocrisy of the Republican Senators who falsely charged that Jackson lacked a judicial philosophy and that she failed to embrace originalism, here I'll use the op-ed by Casey and Vermeule as my starting point. Their comments, summarized below, may sound  familiar to regular readers of this blog.

Casey and Vermeule began by noting "if this is a victory for originalism, it is a Pyrrhic victory of epic proportions." They then summarized the problem as follows:

If and when most judicial nominees, liberal and conservative, Democratic and Republican, assent to some form of originalism, it will come at a steep price for originalists: Their method will be shown to do nothing at all, save, perhaps, providing a jargon in which to rationalize decisions reached on other grounds. It will become clear — even as the justices resolutely deny it — that all the real work, in hard cases of constitutional interpretation, is done by implicit or explicit commitments of political morality. Moreover, the Pyrrhic victory for originalism will be a defeat for the nation at large, diminishing transparency about the real grounds of judicial decisions and exacerbating cynicism about constitutional law.

Casey and Vermule are exactly right on all points. First, originalism, like all or almost all theoretical pre-commitments by the Justices, does almost no work in most constitutional law cases that get to the Court. Second, the "real work" of the Justices in cases involving "constitutional interpretation" involves applying their values, politics, and life experiences to the hard issues the Court has to resolve, not historical or textual analysis. Third, because the Justices talk the talk of text and history, however, instead of being open about what really drives their decisions, Casey and Vermule are spot on that as greater numbers of judges and academics pay lip service to originalism, we lose more and more transparency about the "real grounds of judicial decisions."

Casey and Vermule also talk about the disconnect between originalism and large swaths of constitutional law that are quite obviously inconsistent with that mode of analysis but are somehow deemed acceptable by many if not most originalists. These doctrinal areas include the overturning of  the "separate but equal" doctrine, most of first amendment law, and judicially created limits on agency discretion, among many others. 

After summarizing how even liberals like Professor Jack Balkin have embraced some form of originalism, and how some hard-core originalists like the Federalist Society's co-founder Professor Steve Calabresi argued that same-sex marriage bans should be deemed unconstitutional by judges using originalism, Casey and Vermule conclude their essay as follows:

Against this backdrop, Jackson’s comments this past week are best read as the self-defeating triumph of a vacuous form of originalism. Lawyers of any and all substantive views can agree with its core slogans, it seems, but those slogans are banalities that offer no guidance about how to make the moral choices that inevitably arise in hard cases. When every judicial nominee calls herself an originalist, the method cuts no ice. If everything is originalism, nothing is.

The core arguments against originalism as a tool for judges are not complicated. Where the text is clear, such as the President must be at least 35 years old, judges simply need to be able to read (which is why cases involving clear constitutional language are almost never litigated). Where there is important but imprecise text with contested history, such as cases involving freedom of speech and religion, separation of powers, due process, and equal protection, no amount of historical investigation can shed enough light on the issues to determine results. Here are just a few examples: 

1) In what ways may the government regulate the internet?

2) Do women have the right to fight in combat?

3) Do transgender folks have a constitutional right to use public restrooms that correspond to their gender identity?

4) How does the fourth amendment apply to new and invasive technologies?

5) Since the ratifying generation of the Reconstruction Amendments did not and could not anticipate a segregated country for almost a century, what tools can we use today to make up for the pernicious behavior of white people in power?

6) May the government ban the private possession of lethal arms that the ratifying generations (1789 and 1868) could never have anticipated. If you think that question isn't truly hard, what about the government banning the private possession of nuclear weapons? If that seem like an easy question, then why not guns that can kill thousands in under an hour? Where is the line?

Although some historical details might shed a bit of light on these issues, none can provide enough clarity to lead to determinate results. Moreover, if originalism is our lodestar for constitutional analysis, briefs will of course focus on history, and motivated lawyers and their clients will present history through an advocacy lens, not an accurate one. At the end of the day, as Casey and Vermule recognize, personal beliefs and politics will determine which interpretations of history carry the day, not the history itself. And that lack of transparency is bad for all of us.

Constitutional law cases require judges to actually judge, not act as historians. Judges, of course, should be open to any and all relevant sources of information that shed light on the problem before them, including history. But inevitably the resolution of constitutional cases requires the balancing of values and then the judicial imposition of those values. There is no other way, and we should not pretend otherwise.