Jack Balkin has written an interesting post commenting upon Steven Smith’s and my discussion of strategic originalism. I agree with Balkin that the effectiveness of strategic originalism would turn on the number of originalist judges and whether they are the swing justices. With only one thoroughgoing originalist justice on the Supreme Court at present, strategic originalism will have very limited effect. My discussion, though, was focused not on the present situation, but instead on a more general problem which would also occur even if there were three (or a significant plurality of) originalists on the Court.
Balkin describes my arguments as follows:
Rappaport suggests that originalist judges should threaten to abandon a principled commitment to originalism and impose their personal preferences. Faced with this threat, liberal nonoriginalists will cower in fear and agree to compromise on originalist decisions, because those are likely to offer better results for them than the preferences of conservative judges.
Let’s put aside the hyperbolic language in this description. My point was that a strategic originalism might cause the Leftwing nonoriginalists to have additional incentives to follow originalism, not that it would make them fully originalist. While Balkin does not mention it, I should also emphasize that I ended up recommending against this strategy of strategic originalism, because it would not be as effective as a principled originalism in persuading others to follow originalism. But let me here just focus on Balkin’s criticisms.
In order to give someone an incentive to behave, you have to imagine how they will view the threat from their perspective. Here Rappaport fails to sympathetically consider how many liberals see the world. He imagines that liberals just want to promote their ideology and values through the law, while conservatives are quite serious about promoting the rule of law and original meaning even if it conflicts with their political ideology. That’s why they can credibly threat to abandon those commitments. He also imagines that liberals see things this way as well.
But many liberals, I suspect, would disagree. In their view, liberal Justices are honestly trying to be faithful to the Constitution by deciding difficult cases, a view of the world that Rappaport does not seriously credit. Conversely, many liberals don’t believe that many conservative judges, especially conservative originalists, are really putting aside their ideology and policy preferences in order to defend original meaning and the rule of law. Instead, many liberals suspect that many conservative judges, and especially conservative originalists, promote their ideology and policy preferences through the language of originalism, engage in bad or anachronistic history, or simply don’t make originalist arguments at all when it gets in the way of promoting their deeply-held conservative beliefs.
Balkin makes two points here about why the strategic approach will not work, both relating to how the leftwing nonoriginalists view what is occuring. First, he claims that the Leftwing nonoriginalists believe that they are faithfully interpreting the Constitution. My point here is that whether Leftwing nonoriginalists believe they are being faithful is largely beside the point. If Rightwing originalists were threatening to be nonoriginalists unless leftwing nonoriginalists followed originalism, then the desirability of the Leftwing nonoriginalists following originalism would turn to a significant extent on whether that strategy furthered their judicial preferences. This would be the case whether or not one believes those judicial preferences take the form of their sincere belief that they are faithfully following the Constitution or of a more pragmatic effort to further their own values.
It is true that if the nonoriginalists sincerely believed they were being faithful, they would incur costs from departing from that approach. But so would judges who were more pragmatically pursuing their preferences. While it is possible these sincere judges would incur greater costs than the pragmatic ones, they would still need to balance those costs against the possibility that they would gain more from moving towards originalism.
The second point that Balkin makes is that many Leftwing nonoriginalists believe that “conservative originalist” judges are not putting their ideology aside in order to promote originalism. (And therefore the Leftwing judges would not gain much by attempting to have the Rightwing judges avoid imposing their values.) I am sure that Balkin is right that many Leftwing nonoriginalists believe that.
But their perception at present is not the question. The real question is what they would perceive if the originalists actually started following nonoriginalism, and that perception would depend on the reality. In other words, if Rightwing originalists started to announce that they were departing from the original meaning in specific cases—and if their behavior in these cases clearly departed from their behavior in cases where they were purporting to follow originalism—then Leftwing nonoriginalists would start to become convinced there was a difference. And they would start to take the threat seriously.
Thus, the real question is whether the originalists would behave in a significantly different way if they were following the strategic originalism. And that would depend on these hypothetical justices, their adherence to originalism, and the content of their policy preferences. My guess is that if Justice Scalia could have forced himself to simply promote his values rather than deciding according to original meaning and precedent, his values-based decisions would have significantly differed from the decisions he reached on the court. But we will never know.