Professor Fallon on Selective Originalism and Precedent

 By Eric Segall

Professor Richard Fallon of Harvard Law School is one of our most prominent and productive constitutional law scholars. He brings to the table a strong liberalism that makes him a forceful critic of the current conservative supreme court. His most recent article, "Selective Originalism and Judicial Role Morality," targets the Justices' selective use of originalism in constitutional cases and argues that, even if the justices used originalism consistently, they would still need some theory, steeped in morality and other concerns, for when to reverse what the justices deem to be erroneous non-originalist precedent. How even sincere originalists should blend originalism with non-originalist precedent is under-theorized, although a few originalist professors are beginning to try and articulate some criteria and standards. The Court, however, is nowhere close to having such as theory, as Fallon emphasizes.

I want to strongly encourage people to read this excellent article by one of our leading constitutional theorists. To effectuate that goal, I provide below a few ideas and conclusions from the article some of which readers of this blog will recognize as reaffirmations of what Mike and I have written about over the years. But there is also much in this article that treads new ground. Moreover, Fallon supports his critiques and arguments with such clarity, depth, and persuasion that originalist judges, academics, and lawyers will have a difficult time overcoming his arguments.

One of Fallon's important contributions is a descriptive one. As he says, we "do not have an originalist Supreme Court, committed to deciding all or nearly all cases based on original constitutional meanings, but at most a selectively originalist one." Furthermore, Fallon argues that "selective originalism is dishonest and hypocritical and ought to be abandoned."

To support his claims, Fallon points to numerous areas of constitutional law where the Court's decisions are decidedly non-originalist. Readers of my book Originalism as Faith will recognize many but not all of these areas. But before I list those, here is the core of Fallon's descriptive claim:

Selective originalism is a practice of constitutional decision-making in which putatively originalist Justices of the Supreme Court sometimes ignore or subordinate their avowed originalist premises and instead base their decisions on prior judicial precedents without regard to whether those precedents are defensible on originalist grounds, are binding as a matter of stare decisis, or are reasonably left unexamined based on the principle that the Court should normally decide only those issues framed by the parties’ briefing.

Fallon points to the following constitutional law areas where the so-called originalist justices (including the late Justice Scalia) have not engaged in an originalist analysis to reach the results they advocate:

1) Standing

2) The Power of Congress to Create Non-Article III Courts

3) Freedom of Speech

4) Equal Protection and Equality Norms Generally

5) Congress's Enforcement Powers Under the Reconstruction Amendments

6) Fourth Amendment Cases

7) Takings Cases

Fallon goes into different degrees of detail as to these categories but he is on firm ground when he argues that in each of these areas self-identifying originalist justices have voted in non-originalist ways. He also raises the possibility that the Court's decisions upholding Congress's power to make paper money legal tender, the creation of the Social Security system, and the rights of indigent defendants to government paid counsel might all be erroneous as an original matter. The sum of these categories represents a huge portion of constitutional litigation that is decidedly non-originalist.

Of course, a reasonable response to this account by originalists is that the Court's many non-originalist precedents were decided before the Supreme Court had a substantial contingent of self-identifying originalist justices. But there are at least three responses to that suggestion. 

First, the presence of such a large body of non-originalist precedents should call into question the very idea that originalism is a required form of constitutional interpretation. If we date aggressive judicial review as starting with the infamous Dred Scott case in 1857, and we date the Court's first originalist majority from the time Justice Barrett was confirmed, that's over 160 years without an originalist Supreme Court. In that sense, originalism is in great tension with most of the Court's jurisprudence and likely itself. As Fallon says, only "in the 1970s and 1980s did a self-conscious theory of constitutional originalism begin to take shape. At that time, moreover, originalism was widely regarded as a revolutionary (or reactionary) theory, the adoption of which would have upended traditional approaches to constitutional adjudication."

Second, Justices Scalia and Thomas took part in many of the cases making up the doctrinal areas listed above. As I wrote in Originalism as Faith, if even Justices Scalia and Thomas did and do not vote originalist across huge swaths of constitutional law, a reasonable interpretation is that consistent originalism is difficult if not impossible.

Third, as Fallon details comprehensively and persuasively, even if a justice strives to be a consistent originalist, she will still have to develop a theory of precedent that balances correcting erroneous precedent with societal expectations and reliance. It is not at all clear that such a theory could be coherent unless one argues that all incorrectly decided non-originalist precedent should be overturned by the Court. But not even Justice Thomas would go that far (though he is close to embracing that idea). And it is extremely unlikely any other justice would take such an approach (are the originalist justices really going to rule that Congress can't make paper money legal tender or that Congress cannot create any Article I courts?).

The reality is that a truly originalist Court would have to choose which non-originalist precedents to keep and which to discard. For example, Fallon observes accurately that "leading scholars have found no justification for either the presumptive demand for content-neutrality or the strict scrutiny test for permissible speech regulation in the Founding-era history of the First Amendment." We have, however, an entire body of free speech law that arguably forms a core tenet of our society and has induced reliance in any number of important ways (just one example is media outlets covering public figures under the decidedly non-originalist actual malice standard for defamation). Another example would be the Court's equal protection jurisprudence, which is quite likely not supportable under most well-accepted forms of originalism but, if reversed, could cause much upheaval (heightened scrutiny for gender discrimination is just one glaring example).

There is much more to Fallon's excellent article than what I have summarized here, including a discussion of relevant factors that originalist justices might use to develop a workable theory combining originalism with stare decisis concerns and the reasons why, even if there were agreement on those factors, such a theory would still be difficult for the justices to employ coherently and consistently. But I want to end this blog post on a somewhat personal note. 

Almost a decade ago, Professor Fallon was kind enough to engage with me in a discussion of my book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. We had this conversation at a well-attended meeting of the Boston Bar. We had a wonderful debate and, although Fallon agreed with much of my descriptive account, he had serious reservations about my ultimate conclusions. So, with that in mind, it would be beyond human nature for me not to quote what Fallon says in this latest piece about the Supreme Court:

Given the Supreme Court’s control over its agenda through the certiorari process, its authority to choose between originalist and precedent-based frameworks for decision, and its capacity to bind the lower courts in future cases, we should recognize that the Court frequently and perhaps typically functions as a constitutional-lawmaking institution in ways that differentiate it from lower courts.

Just so. Once we fully accept that the Court is a different kind of court (if a court at all), and that it is what Fallon calls a "constitutional-lawmaking institution," perhaps we can understand the justices  better, and maybe even agree that the best interpretive theory this institution should embrace is not originalism nor living constitutionalism, but one of strong deference to more legitimate law-making institutions such as legislatures and executives. Alas, that topic is for a different day.