Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that
the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law.
Deviation from the fixed-meaning method would lead to judicial decisions based on “the preferences of the judge himself.”
The opening reference to Scalia is made in order to 1) identify originalism with the late Justice Scalia, 2) define originalism as “judicial restraint,” and 3) establish the premise that Scalia and others “have railed” against judicial activism.
On the first point, Smith might have gone on to argue that the way to “save originalism from the originalists” would be to challenge Scalia’s unfortunate implication that we live under a Constitution, but measuring the laws of the land against that Constitution is only done authoritatively when judges do it. To challenge this implication would be to challenge the exclusive ownership of the Constitution by the Supreme Court and also to challenge the notion that judicial independence is equivalent to judicial superiority.
This would potentially save constitutional originalism from both the judicial originalists and nonoriginalists by placing the Constitution in a larger philosophical, historical, and institutional context. But Smith is not interested in launching such a challenge.
On the second point, I also thought that Smith might suggest that the way to save originalism from the originalists would be to distinguish sensible originalists from fixed-meaning originalists, but in a prudential rather than a strategic sense. The prudential originalists would follow the principle laid down by James Madison in Federalist 37, 51, and 63, which is that the meaning of the Constitution is not fixed at the very beginning in, or exclusively by, justices’ opinions, but becomes settled through the “deliberate sense of the community” expressed over time through the various institutions established under the Constitution. Smith does argue that the fixed-meaning approach should be dropped by originalists, but he replaces it with a strategic approach that, despite his claims to the contrary, really has no solid basis in philosophy or history.
On point three, I saw, in making my way through the essay, an outside chance that it might critique the use of the word “preference” when talking about constitutional opinions on behalf of which arguments are expected to be made, in contrast to preferences that are simply asserted. If nonoriginalist judges vote their preferences, do originalists also vote their preferences or do they articulate their principles? Is it that everyone votes, or should vote, his or her preferences whether we are talking about economics, politics, or the law? It seems so, for game theory is what Smith opts for.
I turn now to what I find troubling about this essay. Not only is constitutional theory reduced to judicial preference but also the object—“the hope”—is that judicial behavior can be reduced to a “tit-for-tat in game theory.” So the way to save originalism must be for originalists to move away from stare decisis as a principle of judicial restraint and engage instead in a strategy of “reactivism,” namely, “responding to judicial activism with counteracting activism.”
As an aside, I think Scalia would actually endorse an originalist activist response to judicial activism when the manifest tenor of the Constitution is being violated. But it is Scalia’s blistering dissents that really bother Smith. They do not, he claims, strategically protect originalism because they do not give the nonoriginalist justices an incentive to move the judicial system toward an equilibrium between originalism and nonoriginalism. (Might they not give future generations an opinion to ponder?)
Smith has not, though, explained why equilibrium is an optimal defense for originalism. Why not fashion a strategy—if one must reduce judicial action to war games—aimed at winning? And why is it so important for Smith that the strategy of reactivism—since it is also portrayed as a neutral concept—be used to help judicial activism? At this point, I have to admit to a bout of slight confusion. He defines himself as one “committed to judicial restraint,” and the point of the essay is to provide a new and improved defense of originalism by way of reactivism and the doctrine of the second-best solution. Yet, he favors an approach that is neutral to both sides and produces an equilibrium!
What is to be done? Smith considers the nomination and appointment process inadequate to defend originalism. (Apparently, it is not inadequate to defend nonoriginalism.) He is correct that Republican Presidents have not done very well in selecting originalist judges. That, however, has more to do with the nonoriginalist leanings of federal court judges and law schools than any fundamental flaw in the selection process. Besides, some critical mass of judges at least sympathetic to originalism must have passed through the selection process, otherwise there is no way that the goal of judicial equilibrium can be approached. Let’s not forget that we need a critical number to save originalism at all. So I think he dismisses the problems and possibilities associated with the selection process too quickly.
Besides, the selection process isn’t going away. And this takes me back to the death of Justice Scalia. Let us presume that there is a game going on, or should be going on, concerning Scalia’s replacement. There sure looks like there is a game going on. One might expect this to be the case because the selection of Supreme Court justices takes place in the political realm.
But should the President nominate a candidate who is likely to hold to an equilibrium between restraint and activism or a candidate who would exercise his or her preferences? Are the leaders of the Senate justified in saying they will not consider any nominee the President proposes? Is this a good example, by Smith’s lights, of strategic game-playing? Or is it instead an example where constitutional theory and game theory are at odds with each other?
There is a rather large constituency of originalist supporters who, on principle, think that the Senate should in good faith vote the nominee up or down. So even in the realm of politics, where we have come to expect political games to be played, there are a number of originalist supporters who are unwilling to play the cynical game of tit-for-tat in the selection process.
Most importantly, the process is there in the Constitution, and however much Smith laments the frequency with which the nominees say the right originalist things at their confirmation hearings and then go on to do whatever their preferences tell them to do, one cannot save originalism, or constitutionalism, without paying serious attention to the selection process. It is not stretching things too far to say that what makes this essay interesting reading is that the death of Scalia reopens the question of the qualifications of the justices.
There is a second issue that haunts the essay. It is the specter of Obergefell v. Hodges (2015), which the author deems to be “the latest example of originalism’s spectacular failure to produce judicial restraint on the High Court.”
But why was this case a “spectacular” example of the “failure” of judicial restraint or originalism? Wasn’t it a 5 to 4 vote? Would this case have been as spectacular had the vote been 5 to 4 the other way? Didn’t the deciding vote by Justice Kennedy rely on a rather odd expression of “equal dignity” under the 14th amendment? Were the dissenters wrong to dissent the way they did? Should they have adopted, or laid the groundwork for, a strategy of the second-best based on a more traditional understanding of the Equal Protection Clause rather than issuing a forceful dissent in the case before them?
Given that Obergefell is one of the few actual Court cases mentioned in the essay, it could have been helpful to the reader had Smith articulated his strategic theory of the second-best solution in the context of this “spectacular” case.
Instead, he devotes the heart of the essay to a game-theory-motivated case study of three hypothetical cases. The first is a 6 to 3 decision, with the originalists in the minority. (But at least there were three of them.) In Case Two, the previous six-person nonoriginalist majority has split its votes equally, thus giving the originalist minority the ability to determine the decision. (How often is this scenario likely to take place?) Strategic voting, says Smith, suggests that the three originalists go with their second-best option rather than repeating the “moral statement” they made in Case One where they voted “sincerely.” His recommendation is that the three originalist justices engage in “insincere” or “strategic” voting to form a majority with what I shall call the milder nonoriginalists.
There is a Case Three but, by this time, the reader gets the point.