Saving Originalism: A Reply by Stephen F. Smith

It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them for their thoughtful critiques of my initial musings about how we might reinvigorate originalism as a means of promoting judicial restraint, and to the Liberty Fund and Richard Reinsch for sponsoring this important conversation about the future prospects of originalism.

I begin with what I take to be areas of substantial common ground between myself and the commenters and then take up their respective challenges to the idea that strategic voting by originalists can help curtail non-originalist decisionmaking.

We all agree that, as Professor Greve helpfully puts it, “constitutionalism . . . must remain the long-term objective.” The proper role of unelected, unaccountable federal judges is not to impose their personal policy preferences on society or “update” the Constitution. The judicial role, rather, is to interpret and enforce the Constitution. Nevertheless, we acknowledge, as any sensible observer must, that many judges and constitutional law scholars reject our commitment to originalism and advocate a considerably broader judicial role.

In short, we agree that for those who regard originalism as the proper interpretive methodology, we face a crisis in our nation’s courts. After decades of forceful advocacy of originalism and concerted efforts by Republican presidents to appoint judges who will not, as politicians often say, “legislate from the bench,” originalism and judicial restraint simply do not hold sway in the federal courts today. The question is what, if anything, can be done to promote judicial restraint.

Professor Lloyd suggests that the effort to restore judicial restraint may ultimately be futile. Unlike Professors Greve, Rappaport, and myself, he views the real cause of modern judicial overreaching not as nonoriginalist decisionmaking as such but rather the concept of “judicial supremacy.” Judicial restraint will never exist, Lloyd provocatively suggests, as long as the Supreme Court retains “exclusive ownership of the Constitution”—that is to say, as long as the Court continues to be recognized as the supreme arbiter of constitutional meaning.

Although there is a principled argument against judicial supremacy, it does not strike me as persuasive. Under Marbury v. Madison (1803), the Supreme Court’s duty is to “say what the law is” as a necessary incident to deciding “cases or controversies” under Article III. In Federalist No. 22, Alexander Hamilton explained that the Court’s role is to “expound and define the [laws’] true meaning and operation” and thereby produce a “uniform” legal rule. As Professor Ramsey explains over at the Originalism Blog: “Hamilton does not appear to be talking about courts merely establishing a rule for themselves.  Rather he sees court decisions as establishing a ‘uniform rule’ for society as a whole—something that could not happen unless court decisions (especially decisions of the ‘one supreme tribunal’) were not regarded as authoritative statements of the law by other governmental actors.”[1] It therefore comes as no surprise that judicial supremacy, “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,” has been “respected by the Court and the Country as a permanent and indispensable feature of our constitutional system” (Cooper v. Aaron, 1958).

Moving on from the subject of judicial supremacy, Professor Lloyd suggests that my initial essay was “too quick” to dismiss the nomination and appointment process as an efficacious means of promoting judicial restraint. He suggests that the only sure way to “save originalism,” as I put it, is to appoint and confirm more originalist judges (and, by extension, fewer nonoriginalist judges).  He is correct that, ultimately, only placing the courts in the hands of a solid originalist majority can prevent judicial misadventures in nonoriginalist directions, and like-minded presidents and senators would be wise to take to heart Lloyd’s sage advice to heart.

Nevertheless, I remain pessimistic about the prospect of filling the courts with originalist judges. If the eleven straight Republican appointments to the nine-member Supreme Court from 1969-1992 could not produce an originalist majority on the Supreme Court (and, I note, even Lloyd agrees that “Republican presidents have not done very well in selecting originalist judges”), there is no reason to expect their successors to do any better. Even if they did, however, they would run into serious opposition from Democrats in the Senate. With the stunning defeat of Robert H. Bork’s nomination in 1987, Senate Democrats made it perfectly clear that they stand ready to reject Supreme Court nominees they view as “too extreme” or “outside the judicial mainstream.” This threat will be magnified when, as will inevitably happen someday, Democrats retake the Senate.

Even in the face of strong Republican control of the Senate, Democratic presidents have become adept at selecting highly qualified nonoriginalist judges who will appear more moderate than they are by singing the virtues of judicial restraint at confirmation time. Unless a Republican-controlled Senate flexes its muscles by rejecting qualified nonoriginalist judges—something it has yet to do with the last four Democratic nominees to the Supreme Court—proponents of judicial restraint cannot rely on the nomination and confirmation process as a safeguard of originalism.

In my initial essay, I suggested that strategic behavior by originalist judges can blunt the impact of nonoriginalist decisions and give nonoriginalist judges greater incentives to practice judicial restraint. I framed this issue in my initial essay as involving something similar to the standard “cooperate”/”defect” game in which one side cooperates (by not voting their policy preferences) while the other defects (by voting their policy preferences). This framing, though not essential to my argument for strategic voting by originalist judges, was helpful, I thought, because it highlighted the need for strategic behavior, such as “tit-for-tat” in game theory, for giving nonoriginalist judges incentives to reduce their nonoriginalist forays.

Professor Lloyd finds it “troubling” that I reduce “constitutional theory to judicial preference,” but I believe he may misunderstand my point. I made no claim that constitutional interpretation necessarily involves judges voting their personal policy preferences or that such preferences drive judges’ choices of interpretive methodology. To the contrary, I believe all judges, despite considerable differences of opinion in particular cases, believe they are faithfully interpreting the Constitution, as opposed to voting their policy preferences, and use the interpretive methodology they believe to be best suited to the task.

My point was merely that the latitude the Justices have in constitutional cases will vary depending on whether or not they accept originalism. If a judge discerns constitutional meaning from sources other than text and original meaning, he or she will necessarily be influenced by values from outside the Constitution itself. Indeed, it is fair to say that the reason nonoriginalists reject originalism is that they want judges to have that flexibility—which is why they deride “dead-hand control” by the Framers and prefer a “living Constitution” that is constantly adapted to contemporary needs and values. The nonoriginalist willingness to rely on extra-constitutional values raises the concern, noted by Justice Scalia and other prominent proponents of judicial restraint, that the personal policy preferences of judges will influence judicial decisions.[2]

Professors Greve and Rappaport do not resist my game-theory framing of the problem or the intuition that originalist judges should behave strategically if they truly want to advance the cause of judicial restraint. Their principal critique of my position is essentially that I do not take my game-theoretical premises to their logical conclusion. Professor Lloyd, though hostile to the game-theory approach in this context, concurs that, from a strategic standpoint, originalist judges will need to use far more aggressive responses than the one I proposed to have any hope of constraining nonoriginalist decisionmaking.

My claim was and is that strategic resort to “activism” to blunt the impact of earlier instances of “activism”—which I termed “reactivism”—could help swing the balance back in the direction of judicial restraint. In the process, reactivism would provide greater incentive for nonoriginalist judges to moderate their pursuit of extra-constitutional values. This approach, as Professor Rappaport correctly intuits, is “focused more on responding to nonoriginalist decisions than on preventing them.”

The respondents argue that originalist judges’ best strategy would be to follow the adage “If you can’t beat ’em, join ’em.” Professor Greve describes this strategy starkly: “If you liberals keep making up new rights under the Due Process Clause or the Ninth Amendment or whatever, we conservatives will retaliate and crank up the rights that we happen to like—especially when those rights actually happen to be in the Constitution, like property.” This more aggressive response by originalists, Professor Rappaport reasons, would “increase the costs to [nonoriginalists] of their own nonoriginalist decisions.” With this more potent tool in the originalist’s strategic arsenal, Professor Lloyd asks, “why not fashion a strategy . . . aimed at winning?”

The argument has intuitive appeal. Winning certainly is better than losing or fighting to a draw, yet history (both recent and otherwise) teaches us that sometimes victory simply is not possible, or is possible only at intolerably high cost. In these unfortunate yet common real-world situations, compromises have to be made. I believe the battle between originalist and nonoriginalist judges presents such a situation.

I concede that the more aggressive strategy the respondents identify would potentially be more disturbing to nonoriginalists and, to that extent, considered a more muscular response than reactivism. Professor Rappaport makes the point rather well: “Imagine if Rightwing justices sought to impose their own values on the Constitution—if, for example, conservative justices sought to prevent abortion nationwide through constitutional interpretation rather than simply arguing that the Constitution permitted the states to decide the question. In this situation, the Left would have to worry about much more than the original meaning. They would have to worry about judicial imposition of the Rightwing political agenda.”

Nevertheless, the argument in favor of retaliatory results-oriented decision-making by originalists assumes—incorrectly, in my judgment—that doing so would, as Professor Rappaport puts it, “give [nonoriginalists] an incentive to be originalists.” It is impossible for originalists to force nonoriginalists to become originalists, just as originalists cannot be forced to espouse nonoriginalism. Judges choose their interpretive methodology because they view it as the correct one. Nonoriginalists emphatically reject “dead-hand control” by the Framers, and originalists are just as emphatic in rejecting “living constitutionalism.” The line separating the two sides is etched in stone, and any battle to convert nonoriginalists to originalism is doomed to failure.

Indeed, any such “victory” obtained by pursuing the respondents’ more aggressive strategy would be Pyrrhic indeed. The price of their strategy would be even greater deviations from original meaning and judicial restraint that we have already seen. Unless and until nonoriginalists change sides and become originalists, originalist judges would join their nonoriginalist colleagues in ignoring original meaning and displacing constitutional choices with personal policy preferences. The inevitable result would not just be a violation of the central tenets of originalism and judicial restraint, but also of the concept of self-government in a democracy in which “We the People”—not the courts or government more generally—possess sovereignty.

Seen in this light, the respondents’ strategy sounds much less like the “victory” it is made out to be and more like outright surrender (albeit of the conditional sort). It would, if followed, transform originalists into nonoriginalists—a result that, quite understandably, gives Professor Rappaport pause. As he rightly notes, it would be “unprincipled for originalists not to follow the original meaning simply because nonoriginalists do not follow it.” Two wrongs, one might say, do not make a “right.”

In sharp contrast, reactivism does not involve two wrongs but merely one. Because reactivism is a response to an earlier departure from principles of judicial restraint, it was the prior activist decision that worked a wrong.  If that decision cannot be overruled, either due to lack of votes or unwillingness to reconsider it, judges employing reactivism would recognize the precedential force of the “activist” decision and work within the broad confines of the admittedly unfortunate decision to blunt its detrimental impact.  In doing so, they are helping to produce results closer to what would have been obtained had the earlier court not committed a wrong by resorting to “activism.”

In contending that reactivism only involves one wrong (the wrong committed by the prior “activist” decision), I necessarily conclude that it is not improper to accord stare decisis effect to decisions that are erroneous or even “activist.”[3] From the beginning of the nation’s history, precedent has been viewed as an important constraint on judicial discretion. In Federalist 78, Hamilton went so far as to say that, “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents . . . to define and point out their duty in every particular case that comes before them.”

Quite apart from the separate issue of whether the Constitution requires federal courts to follow the rule of stare decisis, Hamilton’s discussion shows that the Founders were hardly unfamiliar with the concept of precedent. To the contrary, they expected the federal courts to decide constitutional and other issues within their cognizance subject to the constraints of a precedential system. Far from viewing precedent as an obstacle to the proper performance of the judicial function of deciding “what the law is,” the Framers regarded it as an important safeguard against arbitrary judicial discretion.

The fact that ours is—and always has been—a precedent-based system implies the legitimacy of reactivism as a response to prior “activist” decisions. Once a prior case has decided a constitutional question, the “first best” outcome in the view of dissenters is unavailable barring an occasion for overruling the precedent. If the dissenters are willing and able to overrule the precedent, they can and should establish the “first best” outcome by rejecting the prior decision.

Reactivism comes into play, and has value as a device for countering prior instances of “activism,” where the prior decision is beyond correction. In that event, the dissenters are necessarily in the world of the “second-best,” and it is proper for them to engage in what Professor Greve astutely describes as “damage control.” Absent an overruling, the damage done by the previous “activist” decision cannot be completely undone, but the effect of the prior decision can be blunted—and case outcomes moved back in the “first-best” direction—if the dissenters strategically limit prior “activist” decisions or adopt counteracting rules limiting the effect of prior decisions. This task, as Professor Greve correctly states, is to “re-approximate the Constitution” without “making an unholy mess of things,” admittedly “a very hard thing to do, in case after case.”

The respondents question the efficacy of reactivism as a means of “re-approximating” the Constitution. Professor Greve cites the Rehnquist Court’s “New Federalism” decisions as a situation where the Court’s “second-best” effort “hasn’t done much to invigorate federalism.” I agree with him that Court’s efforts here were less than satisfactory, but that does not mean reactivism could not have reinvigorated federalism as a meaningful constraint on congressional power. Reactivism may not always “keep you close . . . to the Constitution,” as Greve says, but it does keep you closer than the non-strategic alternative: repeated dissents, tantamount to “whistling in the wind,” calling in vain for prior precedent to be overruled some day.[4]

The largely futile results achieved in the federalism domain should be contrasted with the dramatic results reactivism produced in the realm of constitutional criminal procedure. Faced with the handiwork of an “activist” Warren Court—which, as Professor Akhil Amar memorably put it, often treated the Constitution as a “ventriloquist’s dummy that can be made to say anything the puppeteer likes”—the Burger and Rehnquist Courts faced a stark choice. They could either overrule large swaths of defendant-friendly, Warren-era innovations fundamentally at odds with the Constitution (such as the Fourth Amendment exclusionary rule and Miranda doctrine), or swing the pendulum back in the direction of law enforcement through reactivist means by accepting the “activist” decisions but limiting them through countervailing doctrines. The Court chose the latter approach, ushering in the famous (or infamous) “counterrevolution” in criminal procedure—and things are once again rosy for law enforcement.

Miranda v. Arizona (1966) is an apt example. As originally announced, it instilled in law enforcement the worry that requiring the famous “Miranda warnings,” advising suspects of their right to remain silent and to the presence of defense counsel, might cripple law enforcement by preventing the police from obtaining confessions necessary for successful prosecution. During his successful campaign for the presidency two years later, Richard Nixon spoke for many troubled by the lawlessness of the 1960s (perceived or real) when he faulted the Warren Court for “handcuffing” the police with unprecedented rulings making it too hard to convict murderers, rapists, and other dangerous criminals.

After the Court moved into conservative hands following Nixon’s election in 1968 and Warren’s retirement the following year, the emerging new conservative majority, led by Justice (later Chief Justice) Rehnquist, Miranda’s chief detractor, quickly deemed the controversial decision to be “prophylactic” only—that is, not constitutionally required. Rather than overrule it, however, the Burger/Rehnquist majority spent decades engrafting limitations and rules on Miranda. These countervailing rules allowed confessions obtained in violation of Miranda to be used to convict at trial and transformed compliance with Miranda into a virtual guarantee that the resulting confessions would be admissible notwithstanding any police trickery or coercive interrogation tactics short of actual or threatened violence.[5] This made Miranda doctrine considerably more complex, to be sure, but police and prosecutors proved to be quite skilled adept at utilizing the new cases to convict the guilty.

This effort was so successful that, by the time Miranda was finally teed up for overruling in Dickerson v. United States (2000), Miranda’s correctness as an original matter was all but an academic issue. Police groups—who had been sharply critical of Miranda when it was first handed down—now filed amicus briefs urging the Court to uphold it. They did so because Miranda had been transformed into a set of requirements that, on balance, strongly favored law enforcement.

The point was not lost on Chief Justice Rehnquist. He wrote the majority opinion in Dickerson reaffirming Miranda as a constitutionally grounded decision binding on the states even as he reaffirmed the countervailing decisions treating Miranda as prophylactic only. Although Miranda itself was harmful, Rehnquist stressed that later decisions “reduced the impact of Miranda on legitimate law enforcement.” Rehnquist’s opinion drew support from all the justices except Justices Scalia and Thomas, who were the proverbial “voices crying out in the wilderness” calling for the almost 40-year-old decision in Miranda to be overruled.

In light of the relentless assault on Miranda, the effectiveness of reactivism as a response to earlier instances of “activism” cannot be denied. Of course, one might say that its effectiveness is precisely the problem. As Professor Greve notes, reactivism can be faulted to the extent, as in Dickerson, it serves to “entrench constitutional error.” The implication is that, if Miranda had been given its full detrimental sweep, it might have been overruled in Dickerson, if not earlier.

In a sense, this is akin to the classic “chicken and the egg” problem: are justices loathe to overrule cases because reactivism spares them the need to do so, or is reactivism necessary because justices do not like overruling precedent? I take the latter view—as I suspect Greve does in his recognition that reactivism is (or at least can be, if sensibly utilized) to accomplish “quite a bit” in terms of “damage control.” Where the will and votes exist for an overruling, the justices will opt for an overruling—the never-ending assault on Roe v. Wade (1973) is an example—and the ability to eviscerate “activist” decisions will not deter them from doing so.

As Greve recognizes, the utility of reactivism is in situations, such as Dickerson, where the will or the votes for an overruling is lacking. Although Dickerson was unsatisfying for constitutional purists, Left and Right—who thought, respectively, the “first-best” outcome was “strong Miranda” or no Miranda—those polar outcomes were, quite simply, unavailable. There were not enough votes for strong Miranda, on only two votes for overruling Miranda, in Dickerson. The compromise outcome—“Miranda-lite” (that is, Miranda with all the pro-prosecution limitations and exceptions engrafted upon it)—was the only result which could unify Left and Right and command a majority. Miranda-lite thus has become the equilibrium position, far better than no Miranda for those on the Left yet considerably better, for those on the Right, than strong Miranda.

This is the answer to Professor Lloyd’s puzzlement at my claim that an originalist should consider it a virtue that reactivism can, as with Miranda, “produce an equilibrium” closer to, but not at, the “first-best” originalist position. Only overrulings can produce “first-best” outcomes and, like many “all-or-nothing,” “winner-take-all” contests, can be quite costly. They produce instability as the law veers from one extreme to another, and high-profile overrulings—of, say, Miranda or Roe—can have adverse reputational and other consequences, possibly even including a backlash against the Court.[6] It therefore is useful to have some means of moving the law back in the proper direction for situations (which I believe to be many) where overrulings are impossible or impractical.

Even Justices Scalia and Thomas, who were willing to overrule Miranda in Dickerson, have recognized that there are limits to how far they will go in rejecting nonoriginalist decisions. The New Deal Commerce Clause decisions are a case in point.

In Gonzales v. Raich (2005), Scalia voted to uphold congressional authority to prohibit the cultivation, possession, and distribution of marijuana for personal, medical use. Although he believed his approach was “more nuanced” than the majority’s broader approach premised on New Deal-era precedents, he conceded that his approach was “not inconsistent” with the majority’s. Thomas dissented, faulting the Court’s “rush to embrace federal power” and prevent the states from “decid[ing] for themselves how to safeguard the health and welfare of their citizens.” Even he, however, stopped far short of calling for a return to the pre-New Deal status quo—which President Franklin D. Roosevelt had derided as the “horse-and-buggy definition of interstate commerce.” Thomas conceded, as he had previously put it in United States v. Lopez (1995), that the Court might only be able to “temper” the New Deal precedents because “stare decisis and reliance interests may convince us that we cannot wipe the slate clean.”

It is precisely these situations that reactivism provides a more palatable response. Although neither Justice Scalia nor Justice Thomas would repudiate decades-old decisions giving Congress a “blank check” in legislating under the Commerce Power in areas of traditional state regulation, they both readily joined Lopez and Tenth Amendment decisions aimed at limiting congressional power and resurrecting federalism-based limits on federal power. Greve is right that these reactivist decisions could and should have gone farther, but at least they restored and took at least some steps toward effectuating the notion, enshrined in the very notion of limited, enumerated powers but rendered illusory in the New Deal decisions, that there should be enforceable limits on federal power. This equilibrium, I submit, is better than the only realistic alternative available today: unlimited federal power over activities, however localized, which can be said to affect commerce in the aggregate.

Professor Rappaport suggests that there is nothing special about reactivism as an exercise in “damage control.” He believes that judges will usually, if not always, limit and undermine precedents with which they strongly disagree. Although I agree that there are clear examples of reactivism at work—in criminal procedure and federalism, for example—I think he undervalues just how strongly judges in general (and perhaps conservative judges in particular) prefer to stick with precedent. My sense is that, in the usual case, judges faithfully adhere to precedents they regard as erroneous or even “activist.” They may not extend those cases to new factual situations, but they accept them as precedent so far as they go.

By emphasizing reactivism as a realistic response to prior instances of activism, the hope is that judges will see a viable alternative to retaining or repudiating “activist” decisions. Otherwise, as Greve notes, judges might tend to view reactivism—activism in response to activism—as “illegitimate, because it seems underhanded.” This “third way” is principled because it operates in the “second-best” world and aims to produce results, otherwise unobtainable by means of overrulings, that replicate “first-best” outcomes. I could not agree more with Greve that reactivism (whatever term one might use to describe it) is, in many cases, “the only way to re-approximate the Constitution” and thus should not be dismissed as “mere tactical maneuvering that reaches the ‘right’ result by making an unholy mess of things.”

In short, Professor Rappaport’s title, “Promoting Originalism: Through Strategy or Principle?,” asks the wrong question. “Strategy” is not the opposite of “principle.” In a world in which originalists share power with nonoriginalists, and the nomination and confirmation process cannot guarantee strong originalist majorities, the only way originalism can ever hope to be “principled” is if it incorporates strategies allowing “activist” nonoriginalist decisions to be changed in ways that produce results closer to “first-best” originalist outcomes. Bereft of a strategic dimension of the kind I have outlined, constitutional adjudication drift, slowly perhaps but discernibly, in the nonoriginalist direction.

If, in cases where overrulings are impractical, an equilibrium closer to the “first-best” result is preferable—as Professor Greve and I think—to leaving “activist” decisions largely or entirely uncorrected, there still is the objection that reactivism may not move the equilibrium far enough toward the “first-best” result. Professor Rappaport, for example, suggests that originalists could swing the pendulum farther in the originalist direction by threatening to abandon originalism in favor of a conservative, results-oriented jurisprudence in which they read their own extra-constitutional values into the Constitution. This bolder response, though unprincipled in his view, would give nonoriginalist judges “an incentive to be originalists,” out of fear of “judicial imposition of the Rightwing political agenda,” and thus better achieve the strategic goals of reactivism.

Although, for reasons already explored, I agree with Professor Rappaport that this more muscular approach would be unprincipled for originalists, I dispute the dynamic he sees. Nonoriginalists will never become originalists, and even the prospect of having their originalist colleagues vote to impose the “Rightwing political agenda” will not do so. Far better, from the nonoriginalist perspective, simply to keep on voting in accordance with their nonoriginalist methodology and win in cases where they have the necessary votes. Where the nonoriginalist side falls short, they can powerfully criticize their originalist colleagues for being hypocrites who disregard their stated commitment to originalism when it suits them.

Moreover, nonoriginalists might actually welcome a clash between what Rappaport describes as “Leftwing” and “Rightwing” political values. To the extent nonoriginalists believe their extra-constitutional value choices—in favor, say, of abortion rights, same-sex marriage, and gun control—are likely to be accepted by the public as the “right” ones for contemporary society, they have nothing to fear from conservative judicial “activism.” If everyone is an “activist,” then, of course, no one is—and the only thing to be decided is whose value choices are “best.” That is nonoriginalist turf, and the appeal of originalism is that it reserves that policy-laden turf to the democratic process. Originalists should continue to fight on very different turf: the turf of implementing policy choices enshrined in the Constitution, as originally understood and ratified into the nation’s fundamental law. If they cease to do so, then the battle for judicial restraint is doomed to defeat—and individual liberty will be the first casualty on the battlefield.

 [1]  http://originalismblog.typepad.com/the-originalism-blog/2015/05/originalism-and-judicial-supremacymichael-ramsey.html.

[2]  I make no claim that originalism operates as a perfect constraint on decisionmaking by originalist judges. The brand of originalism to which the judge adheres will give him or her varying degrees of flexibility, as Professor Lloyd’s distinction between “sensible originalists” and “fixed-meaning originalists” suggests. Moreover, even on the strictest view of originalism, there will be hard cases which cannot be definitely resolved solely on the basis of original meaning and intention. The argument for originalism is not that it is a perfect constraint of judicial decisionmaking but merely that is the best of the available constraints—and preferable to no such constraints at all.

[3] It is fashionable today in legal academia to assume that the word “activist” signifies nothing more than disagreement with the outcome of a case and thus should be avoided. I reject this assumption and believe the term “activist” is not synonymous with “I disagree.” As I use the term, a decision is not “activist” merely because I view it as erroneous or because it uses an interpretative methodology I reject. Without going into unnecessary detail here, my concept of reactivism only applies to prior decisions which are properly considered “activist” because, for example, they reached outcomes that were impermissible in light of clear constitutional text, principles of judicial minimalism, and precedents entitled to respect under existing stare decisis rules.  Consequently, although I am an originalist (of the “faint-hearted” sort, like Justice Scalia), I do not regard all nonoriginalist decisions as “activist,” and would view some originalist decisions as “activist.”

[4] Professor Lloyd suggests that repeated dissents advocating for “first-best” results might “give future generations an opinion to ponder.” That is correct, but my interest is achieving actual law reform, not winning debater’s points from legal scholars or law students. In any event, in most cases (even constitutional cases), I think Abraham Lincoln’s statement at Gettysburg that “the world will little note, nor long remember, what we say here” will apply. Comparatively speaking, it will surely be the rare case in which “future generations” ponder dissents from earlier eras or the dissents of yesteryear lead to overrulings in the distant future.

[5] See generally Stephen F. Smith, “Activism as Restraint: Lessons from Criminal Procedure,” Texas Law Review 80 (2002), 1057, 1109-10.

[6] Indeed, a central critique of the Warren Court’s criminal procedure decisions was that they were sharp deviations from precedent: “[T]he list of opinions destroyed by the Warren Court,” one critic famously lamented, “reads like a table of contents from an old constitutional law casebook.” Nixon’s law-and-order campaign, which made the Supreme Court a political issue and resulted in the “Counterrevolution” in criminal procedure, is an apt example of the possibility that excessive reliance on overrulings can trigger a backlash. So, too, is 18 U.S.C. § 3501, a law passed soon after Miranda by a Democratic Congress, and signed into law by President Lyndon Baines Johnson, purporting to overrule Miranda and resurrect “voluntariness” as the test for the admissibility of confessions in federal court. The Rehnquist Court declared the statute unconstitutional in Dickerson v. United States (2000).

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