An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
In the course of his thoughtful discussion of Chief Justice Roberts’ reported change of mind on NFIB v. Sebelius, Mike Rappaport makes what seems, at first glance, to be an unassailable assertion: A justice ought not to consider extraneous circumstances surrounding a decision, such as its effect on his or her reputation. Instead: “The decision is supposed to be based on a justice’s view of the law.”
But closer inspection reveals tension between that premise and the doctrine of judicial restraint, which I recently argued in this space was theoretically but not inherently compatible with the philosophy of originalism that Rappaport, like Justices Scalia and Thomas, espouses. If Federalist 78 is to be believed, a justice ought very much to consider circumstances beyond his or her narrow reading of the law.
That paper says the power of judicial review is to be exercised only in a case of “irreconcilable variance” with the Constitution. The modifier—“irreconcilable”—suggests there is no way around the need for justices to exercise discretionary judgment in addition to an antiseptic, technocratic reading of the law. By the Chief Justice’s now famous metaphor—that the Court exists only to call balls and strikes—the strike zone ought to be large enough to accommodate anything but an unquestionably wild pitch
The tension is evident in Professor J.B. Thayer’s 1893 article, “The Origin and Scope of the American Doctrine of Constitutional Law,” a landmark explication of the idea of judicial restraint. Paraphrasing Judge Cooley, Thayer writes that
one who is a member of a legislature may vote against a measure as being, in his judgment, unconstitutional; and, being subsequently placed on the bench, when this measure, having been passed by the legislature in spite of his opposition, comes before him judicially, may there find it his duty, although he has in no degree changed his opinion, to declare it constitutional.
The point, Thayer emphasizes, is that the judge’s view of the law is not all that counts.
It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, — so clear that it is not open to rational question. … [T]hat is the test which they apply,–not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. (emphasis added)
On Thayer’s argument, moreover, a justice should consider the possibility of a popular backlash against the Court, this being one of the intended restraints on judicial overreaching.
The difficulty from the originalist point of view is that restraint, so conceived, leaves judges wide latitude for discretion rather than confining them to an all but scientific explication of the law. According to the doctrine of restraint, there will be situations in which a judge—looking, as Rappaport counsels, merely at the law—will conclude that an act of Congress is unconstitutional yet should nonetheless uphold it. This discretion requires what Thayer calls a “combination of a lawyer’s rigor with a statesman’s breadth of view.” Originalism counsels the first but cannot always countenance the latter. But statesmanship so conceived is precisely what Roberts demonstrated in searching for a constitutional justification for the Affordable Care Act. The question conservatives ought to ask is not merely whether they agree with that basis but whether it was an irrational one.
Critiques of Roberts have tended to overlook the fact that the judiciary is only one among many institutional protections against abuse, others being bicameralism, separation of powers, the presidential veto and, ultimately, the reasoned judgment of the people, which was registered in the election of 2008 and is about to be taken again. Thayer emphasizes that these protections, not judicial review, featured prominently in the debates at the Constitutional Convention of 1787. Hence Madison could later say that “it was never intended, and can never be proper” for the judiciary to have the final say in constitutional matters. Jefferson, characteristically, could go further, saying only Congress could declare a law unconstitutional. And Hamilton’s standard of “irreconcilable variance,” as we have seen, established a clear foundation for restraint.
None of this is to suggest that originalism and restraint are inherently or always incompatible. Indeed, the genuine originalist will practice restraint. But it does illustrate that an analytic determination of the intent of the Founders will not always lead to restrained results. Cases are bound to arise in which originalism and restraint stand in tension; NFIB v. Sebelius was one of them, and it has exposed a divide that requires attention from conservative thinkers.
What, then, are judges to do? Are they not bound, once a question of constitutionality does reach the bench, to rule honestly and impartially in accordance with the meaning of the Constitution as they see it—the formula Rappaport compellingly suggests?
Well, no. What they are supposed to do is defer. On questions of policy decided by the elected representatives of popular majorities, judges are to intervene only when the act in question is so obviously and indisputably unconstitutional that no reasonable person could otherwise conclude. They are, in short, supposed to do the one thing evidently anathema on both sides of contemporary politics: refrain from exercising the power available to them. In so doing, Roberts very much upheld his “view of the law”—that is, the fundamental law of the Constitution, including the sharply confined role it accords the judiciary.