Further Thoughts on Originalism and Stare Decisis--In Response to Prof. Solum

by Michael Dorf

In my Friday post, I argued that there is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

In a response to my post, Prof. Larry Solum posted a terrific set of comments, questions, and requests for clarification on Legal Theory Blog. I've given his questions some thought and will answer them here. Rather than restate the questions and the reasons Prof. Solum asks, I'll rely on readers to go to his post for context. After answering Prof. Solum's questions, I'll add a comment about what I regard as the relative modesty of the point I was trying to make.

Question One: Is the test that your propose a counterfactual (or hypothetical) test (would originalism counterfactually have produced Brown) or is your test about the actual present and future (will originalism produce Brown today)?

Answer: I meant to be asking a counterfactual (or hypothetical) question, namely this one: Suppose an originalist were on the Supreme Court in 1954 and that this originalist, applying originalism as he understood it, concluded that de jure segregation in public schools is constitutional. If so, then originalism fails the test of Brown (subject to a caveat about what I mean by a few other things that I address in the next answer). 

Question Two: What does "must actually produce Brown" mean?  Does it mean that the theory must guarantee Brown?  Or is something else sufficient?  And if so, what?

Answer: I was rather sloppy in my language and I now want to clarify or perhaps amend my earlier position to make clear that I should have said something weaker, like this: If a practitioner of some brand of originalism (or for that matter any other approach) cannot plausibly conclude that Brown is right, then that brand of originalism (or the other approach) fails the Brown test. To pass the Brown test, a theory need not guarantee the outcome in Brown. So, instead of "must produce" I ought to have said something more like "would likely produce" or at least "would not stand as a very serious obstacle to producing" Brown.  As Professor Solum correctly notes, "many of the major alternatives to originalism do not as a matter of necessity" produce Brown.

I would also add that in any historical period, various assumptions of the age will necessarily interact with any particular methodology. Let me illustrate with an example. Suppose that at some point in the future Obergefell comes to be regarded as sacrosanct in the same way that the Brown test assumes that Brown now is. At that point, the Obergefell test will be whether the methodology would likely produce Obergefell in 2015. I don't think that there's any constitutional theory that would likely produce Obergefell in, say, 1915 or 1965, except perhaps in the hands of a quite unusual judge. Accordingly, it would be unreasonably demanding of any constitutional theory that it would likely produce Obergefell in an earlier era.

Question Three: Given the answer to Question Two, what alternative interpretive methodologies do meet your test?  (And given the limits of the blog post, one example that Professor Dorf is willing to defend would suffice.)

Answer: I  think multiple approaches satisfy the Brown test.

For example, Ely's representation-reinforcing theory of judicial review is designed almost for the very purpose of producing Brown but not Roe.

Prof. Solum suggests that pluralism of the sort championed by Philip Bobbitt (and Dick Fallon and others) could produce not-Brown, and I think that's right, but I think that in 1954 it would have been more likely to produce Brown. How do I know? Because the actual methodology of the unanimous Court in Brown is pluralist. After ordering reargument on the history of the adoption of the Fourteenth Amendment, the Court concluded that the evidence "cast some light" on the problem but was ultimately "inconclusive." The ultimate decision was then based on an extension of the graduate school precedents and frankly moral reasoning.

I also think that at least some versions of semantic originalism satisfy the Brown test. Indeed, despite what I just said, one could read the Brown opinion as presciently adopting semantic originalism: with the original sources inconclusive, the Court turns to construction. And for many semantic originalists (Ronald Dworkin was a good example) the meaning of the equal protection clause, not just construction added on to interpretation, produced Brown. Robert Bork in his Supreme Court confirmation hearing was another example. As I've said many times before, I don't like the term "semantic originalism" because of how it interacts with public debate about other kinds of originalism, but I have no doubt that many people who preach or practice what they regard as semantic originalism could comfortably get it to produce the result in Brown.

Bolling v. Sharpe and perhaps some other canonical cases (Is Gideon v. Wainwright a canonical case? New York Times v. Sullivan? Griswold v. Connecticut?) may be tougher sledding even for semantic originalism. I have little doubt that the broadest conceptions of semantic originalism (such as Jack Balkin's) can comfortably produce the results in the canonical cases, but I suppose it's possible that other versions of semantic originalism stumble on some of these and thus might fail the test that the relevant cases pose.

But I want to re-emphasize that I wasn't aiming to offer a full-blown critique of any particular interpretive methodology or to defend some alternative. My only point was that there is a flaw in a certain kind of response to a particular criticism. There may be other, better responses. Or someone could bite the bullet and say that a method that fails the Brown test is nonetheless preferred if it is ultimately correct. Although he usually hedges, this is probably what Justice Scalia means when he complains about people who disagree with originalism "waving the bloody shirt" of Brown.

In my last post I did not offer an argument for the proposition that an approach to constitutional interpretation must pass the Brown test.  I simply noted that those who accept the validity of the Brown test but rely on stare decisis have misunderstood what is at stake in the Brown test. I continue to think that.

N.B.  I am grateful to Marty Lederman and Saul Cornell for very useful correspondence offline. I thought about their comments in formulating the foregoing, though I may have said some things with which they disagree.