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Saving Originalism from the Originalists

For decades, adherents of “judicial restraint,” led by Justice Antonin Scalia, have railed against “judicial activism.”[1] Activist judges, they charge, have repeatedly overstepped the bounds of their authority by striking down acts of the democratically accountable branches of government on grounds having no proper basis in the Constitution. In the view of many who favor more restrained use of the power of judicial review, “originalism”—the notion that the Constitution should be interpreted in accordance with the intent of the Framers—is not only the sole defensible method of constitutional interpretation, but the last, best hope of ending misadventures in judicial activism.

As Justice Scalia famously argued in “Originalism: The Lesser Evil,” his oft-cited address from 1988, nonoriginalism is “incompatib[le] with the very principle that legitimizes judicial review.”[2] This principle, he went on, is that “the Constitution, though it has an effect superior to other laws, is in its nature the 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.” Deviating from “fixed” constitutional meaning would invite (if not necessitate) adjudication based on “the preferences of the judge himself.”[3]

The recent death of Justice Scalia after three decades on the Supreme Court makes it timely to assess the success or failure of originalism as a means of promoting judicial restraint. Although I share his commitment to originalism, my thesis is that current forms of originalism are fundamentally flawed. It cannot hope to produce judicial restraint because it does not speak to—and thus cannot possibly constrain—nonoriginalist judges. As long as nonoriginalist judges consider themselves free to reject original meaning, judicial activism will remain the order of the day in the nation’s courts for the foreseeable future.

The time has come, I contend, to save originalism from the originalists. This will require reconceptualizing it from a mere principle of self-restraint for originalist judges into a more robust doctrine which will give nonoriginalist judges incentives to be more restrained in constitutional cases. Under this more robust form of originalism, originalist judges will not engage in unilateral disarmament—by which I mean disclaiming activism and restraining themselves to enforcement of original intent—but will engage in activism of their own to counter prior exercises of activism by nonoriginalist judges. The hope is that, as with tit-for-tat in game theory, a credible threat to retaliate in the event of non-cooperation will produce an equilibrium closer to the “restraint” model than would otherwise occur.

My term for that credible threat, in the context of responding to judicial activism with countervailing activism, is “reactivism.”

Two caveats are in order at this point. First, I make no claim that activism (however one might define it) is defensible across the board. My own view is that restraint is the proper approach for federal judges to take; this is why I limit my defense to reactivism, which by definition can occur only after, and to the extent that, a majority on the Court has already committed a significant departure from principles of judicial restraint.

Proponents of restraint presuppose that activism is never justified. To the extent that that view is adopted by restraint-minded judges, however, activist judges, conservative or liberal, are given a free hand to impose their moral and political values on society through constitutional adjudication. If that happens, then judicial restraint will operate, in practical terms, as the handmaiden of judicial activism, and the Constitution will remain something like a one-way ratchet in which contemporary understandings of the document steadily drift farther away from the original understanding.

Second, my position should not dismissed as an apologia for conservative judicial activism as such. As I envision it, reactivism is an ideologically neutral concept. “Liberal” justices could use reactivism to counter earlier instances of “conservative” activism, just as “conservative” justices could use it a response to “liberal” judicial activism.

My aim, in short, is neither to praise conservative activism as such nor to bury judicial restraint, but instead to suggest the need to rethink, to some extent, conventional understandings of judicial restraint. What is needed, I believe, is a more nuanced understanding, one tailored to the realities of constitutional adjudication in modern society. I am under no illusion that refining judicial restraint along these lines will end judicial activism—indeed, it will actually require activism in certain instances—but it should produce an equilibrium closer to the restraint model than our current system of adjudication.

Originalism’s Failure

The arguments for judicial restraint presented by Justice Scalia and others, though controversial, must be powerful. Nowadays nominees put forward by both political parties genuflect at the altar of judicial restraint to win confirmation. Even those assailed by opponents as “judicial activists” deny the charge and extol the virtues of judicial restraint. For example, during her 2009 confirmation hearings, Justice Sonia Sotomayor described her judicial philosophy in terms that any jurist nominated by a Republican President might have used. Her “judicial philosophy,” she said, “is simple: fidelity to the law. The task of a judge is not to make the law—it is to apply the law.” She added that her prior judicial record reflected her “rigorous commitment to interpreting the Constitution according to its terms” and to “hewing faithfully to precedents.” Justice Elena Kagan similarly outlined a “modest” judicial role in her confirmation hearings the following year, one “properly deferential to the decisions of the American people and their elected representatives,” and asserted that the Supreme Court “must . . . recognize the limits on itself” as it decides constitutional cases.

Nevertheless, the restraint arguments have had surprisingly little real-world effect. With the support of constitutional law scholars who have roundly condemned originalism as misguided, dangerous, or both,  the Supreme Court has continued to declare unconstitutional government actions that would have been unassailable on originalist grounds. Last term’s momentous decision in Obergefell v. Hodges, recognizing a fundamental right to same-sex marriage trumping contrary legislation and ballot referenda adopted nationwide, is merely the latest example of originalism’s spectacular failure to produce judicial restraint on the High Court—a court, interestingly enough, that has been dominated for decades by a Republican-appointed majority that was supposedly committed to judicial restraint.

No one was more acutely aware of originalism’s failure than Justice Scalia himself. Later in his life, Scalia became known less for his robust defense of originalism than for dissents bitterly accusing his colleagues of essentially “legislating from the bench.” The reaffirmation of Roe v. Wade (1973) in the 1992 Planned Parenthood v. Casey decision brought forth his much-quoted statement, “The Imperial Judiciary Lives”[4]. He went even further in the 1996 case that struck down the exclusion of women from the Virginia Military Institute (United States v. Virginia), faulting his colleagues for “inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law.” Perhaps the sharpest of his signature sharp rebukes came in the 1996 ruling that granting or terminating municipal contracts based on political patronage violates the First Amendment (Board of Commissioners v. Umbehr), in which Scalia asserted that “this Court’s Constitution-making process can be called ‘reasoned adjudication’ only in the most formalistic sense”—and pointedly accused the majority of “designing a Constitution for a country I do not recognize.”

The problem with conventional forms of originalism is that nonoriginalist judges do not consider themselves bound by original meaning and thus openly rely on factors other than original intention in deciding constitutional questions. In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of judicial restraint unless it has a method of eliciting it from nonoriginalists.

Moral suasion and constitutional theory, even in the hands of as skilled a theorist and polemicist as Justice Scalia, have proved insufficient. So, too, has the nomination and confirmation process. From 1969 to 1986, Republican Presidents made 10 consecutive appointments to the Supreme Court, 11 if William H. Rehnquist’s elevation from Associate Justice to Chief Justice is counted. Since 1986, the appointments have been split four-to-four among Presidents of both parties, with President Obama poised to break the tie by naming a replacement for the recently deceased Justice Scalia. Over the last four decades, the Senate has only rejected one nominee for the Supreme Court (Robert Bork), and has confirmed every other who received a floor vote.

Despite this lopsided margin in appointments to the High Court (15 Republican appointees versus four Democratic appointees), Republican Presidents have been unable to achieve their stated goal of ending judicial activism. Obergefell, Casey, and other decisions commonly regarded as exercises in liberal judicial activism were all decided by a Court dominated by Republican appointees. This is not to say the latter made no difference. In constitutional criminal procedure, for example, it is clear that they did produce a considerably more “law and order” Court than the Warren Court—but rather that they made little difference in moving the Supreme Court from activism to restraint.

There are many potential reasons why the Republican dominance in Supreme Court appointments has failed to accomplish their Presidents’ stated goal of curbing judicial activism. For example, the White House’s vetting process could simply err, resulting in the appointment of jurists mistakenly believed to favor judicial restraint. President Eisenhower’s statement that his two greatest mistakes in office were the icons of liberal activism, Chief Justice Earl Warren and Justice William Brennan, comes to mind as an example.

It could also be that “restraintist” nominees gravitate toward activism once on the bench, either because their commitment to restraint weakens over time[5]—or because they respect nonoriginalist decisions as precedents. In this connection, it bears noting that many (if not most) originalist judges are committed to the principle of stare decisis. As such, they will follow precedent, absent a special justification for revisiting previous decisions, even if those decisions were reached on nonoriginalist grounds. Justice Scalia captured this point, in the above-mentioned address, by proclaiming himself a “faint-hearted originalist” who would adhere to precedents invalidating flogging even if, as a matter of first impression, he would uphold the practice on originalist grounds.

Nor can one omit the possibility that, notwithstanding their claim to favor judicial restraint, Republican Presidents actually want activist judges—albeit those who would pursue their preferred political ends, such as siding with law enforcement in criminal cases and with big business in tort and employment-discrimination litigation.[6]

Whatever the reason or set of reasons might be, it seems undeniable that the nomination and confirmation process cannot be relied upon to put an end to judicial activism. To have any hope of promoting restraint, then, originalism must search for ways to constrain nonoriginalists.

Strategic Originalism to the Rescue?

Fortunately for those of us who are committed to judicial restraint, originalism is not inherently doomed to failure. Its prospects would be brighter if originalism were given a strategic dimension instead of merely being thought of, as Justice Scalia did and constitutional theorists do, as an interpretive methodology. A strategic understanding of originalism would require proponents to think dynamically about constitutional adjudication as a clash between originalist and nonoriginalist approaches to constitutional adjudication. If they did, they would look to create incentives for nonoriginalist judges to be more restrained than nonoriginalist preferred method or methods of interpreting the Constitution would allow.

On a closely divided court such as the contemporary Supreme Court, originalist judges would best achieve the objective of judicial restraint by responding to nonoriginalists’ activism with a retaliatory form of their own. I have called it, as I said, “reactivism”— my term for activism in reaction to prior instances of activism, as opposed to first-instance activism. Although the present Liberty Forum essay concentrates on how originalists can use reactivism to move the Court in the direction of judicial restraint, it cannot be denied that the concept would also allow nonoriginalists to retaliate against originalists who engage in first-instance activism. My goal is to reduce activism of all kinds, not merely of the nonoriginalist variety.

Originalist judges cannot, of course, compel their nonoriginalist colleagues to embrace originalism. Nothing can do that. The former can, however, at least give the latter some incentive to limit their own activism to bounds that would be more acceptable to originalists. The incentive, as I said above, is the credible threat of retaliation, and the model is the Cold War doctrine of “mutually assured destruction.”

During that period of heightened tension between Moscow and Washington, nuclear war was averted by the fact that each side could, and presumably would, respond to a nuclear attack in kind. This threat of mutual annihilation unfortunately did not prevent all conflicts, military or otherwise, between the Soviet Union and the United States—but it did keep the nuclear peace through several close calls, such as the 1962 Cuban missile crisis. The credible threat of all-out retaliation took away the incentive either side would have to launch a preemptive nuclear strike.

The argument here is broadly similar. Absent a credible threat of retaliation from originalists, nonoriginalists will have nothing to fear from even the most blatant forms of activism. Originalists will, by definition, lack sufficient votes to overrule the nonoriginalist decision, leaving nonoriginalists the ability to reap the benefits of their decision without reprisal from inside or outside the Court (in the form of removal from office or overruling by constitutional amendment). If, however, a sizeable block of originalists committed to retaliating against nonoriginalists for unacceptable exercises in activism—such as by undermining prior activist precedents or blunting the force of those precedents through their own activism—the range within which nonoriginalist judges would find it advantageous to engage in activism would likely be reduced, hopefully producing an equilibrium closer to the “restraint” end of the spectrum.

How It Might Work

A fairly simple hypothetical may help set the stage for consideration of strategic originalism. Imagine that the Supreme Court is asked to decide in Case One, as a matter of first impression, whether criminal defendants have a constitutional right to a particular kind of safeguard at trial. After due consideration, the votes are tallied, and the Court rules 6 to 3 for the defendant, concluding that the right does, in fact, exist. The three dissenters consider the Court’s conclusion impermissible in light of fairly clear constitutional text or indicia of the Framers’ original intent.

Sometime later, Case Two comes up, asking the Court to resolve a Circuit Court split concerning what defendants need to show in order to make a successful claim for reversal based on the right recognized in Case One. The six justices in the majority in Case One split here among two different tests, with three voting to affirm the petitioner’s conviction based on the strict test applied by the appeals court, which the petitioner does not satisfy and which would be very difficult for any defendant to satisfy. Another group of three justices from the Case One majority endorses a lax test that the petitioner satisfies and that other defendants could readily satisfy and therefore vote to reverse. Because a majority is required to control the disposition of the case, neither the strict nor lax groups can, on their own, decide the case, the disposition of which will therefore be determined by how the dissenters vote.

Let us further assume that the dissenters, though still convinced that Case One was an activist decision, believe that the strict test is undesirable on its own terms, perhaps because it is less workable than the lax test. How should they vote in Case Two?

Under conventional norms of judicial behavior, the dissenters would have two options.

They could reaffirm their prior view that Case One was wrongly decided and vote to affirm the conviction, urging that the prior precedent in Case One be overruled. This  would result in a 6 to 3 vote affirming the conviction without an opinion for the Court, with a three-justice plurality adopting the strict test and the three Case One dissenters concurring in the judgment on the grounds that Case One should be overruled.

Alternatively, if the dissenters were unwilling to advocate overruling Case One, or if they did so advocate but fell short (and they would because, by hypothesis, they lacked the necessary five votes to overrule Case One), the dissenters could, in essence, “let bygones be bygones.” This would mean that they would begrudgingly accept Case One as a given and thus proceed to answer the question posed in Case Two.

In that event, the dissenters should, under conventional norms, adopt the lax test in Case Two because that is the choice they would make if they were sitting in judgment alone without regard to the decisional outcome their choice would produce in conjunction with the votes of other justices.

As Evan H. Caminker has written[7], it would be “unfamiliar,” on the conventional view, to examine legal rules for correctness as “rule packages” rather than on an individual basis. In other words, each rule (here, either the strict or lax test in Case Two) would be examined separately and on its own terms to determine whether it is correct or not, without regard to either the content of other rules that bear on the same general subject (here, the constitutional rule adopted in Case One), or the voting behavior of the dissenters’ colleagues in Case Two.

Neither of the two alternatives, it should be noted, would be terribly attractive to the dissenting justices. Most obviously, absent intervening personnel changes on the Court, it would largely be pointless for the dissenting justices to vote in Case Two to overrule Case One. Except in the rare switch by members of the Case One majority, the dissenters will not have the five votes in Case Two necessary for an overruling.

Under those circumstances, voting to overrule might have value as a moral statement (as in the repeated dissents by Justices William Brennan and Thurgood Marshall in capital cases), but it would not carry the day for their cause. Indeed, doctrinal incoherence could well result if justices continued voting their preferred outcomes after those outcomes were rejected—first-best voting by the justices might prevent the Court from assembling a majority or even a clear plurality opinion as to the reasoning for the disposition.

The second alternative for the dissenting justices in Case Two—following erroneous precedents to their logical end—would likewise have little allure. The dissenting justices would be magnifying the effect of what they believe to be an erroneous interpretation of the Constitution if they were required to give the precedent the same robust effect they would give to a correct decision. As a result, even where they are unwilling to overrule a precedent they believe to be wrong, justices will typically respect them only so far as they go and will not extend them beyond that scope.

Let us further imagine that Case Three has come before the hypothetical Court. This time, there have been personnel changes on the Court, and two members of the Case One majority have been replaced by justices who agree with the Case One dissenters that Case One was wrongly decided. With this hypothetical turn of events, the Case One dissenters now have an option—overruling Case One—that they lacked in Case Two.

Should the Case Three majority overturn Case One (and, implicitly, Case Two)? The staunchest proponents of first-best voting would say that Case One should be overruled because justices should always vote their first-best preferences.[8] For most of the rest of us, however—including today’s Supreme Court justices—the answer is an unequivocal “it depends.”

The question turns out to be substantially more difficult than proponents of first-best voting admit. Clearly, overrulings do happen every term, roughly on the order of one-and-a-half overrulings, on average, per year over the last two decades, and so the justices are willing to revisit prior precedent in certain contexts. Unless we are to assume that a majority of the Supreme Court only disagrees with two cases a year on average, which seems highly implausible, the rate of overrulings suggests a general reluctance to overturn precedent. That justices would be instinctively reluctant to overrule prior decisions should not come as a surprise because there are significant costs to overruling precedent, such as upsetting reliance interests founded on prior law.[9]

As a consequence, absent strategic behavior, even egregiously wrong decisions are wrapped in the protective cloak of stare decisis and thus will control the course of future litigation. The dissenters will not be able to do much to improve the situation.  All they will be able to do is continue voting their first-best preferences—and being outvoted by their colleagues doing the same–in hopes of one day garnering enough votes for an overruling.

A Second-Best Solution

Incorporating into originalism the strategic dimension I defend here—reactivism—would give dissenters a new and more palatable option in the Case Two situation (where they lacked the votes to overturn Case One), and also in the Case Three situation (where they had the votes but were unwilling to overrule the decision). In Case Three, and all subsequent cases relating to Case One, the justices could adopt legal rules that limit or blunt the effect of the right recognized in Case One.

So, for example, the justices could hold that the right applies in certain situations but not others, or adopt rules making recovery for violations of the right more difficult or limiting the extent of recovery permitted for such violations. Any of these steps would allow the justices to “limit the damage” done by Case One without having to disavow it outright.

Reactivism offers a palatable solution in the Case Two situation as well where an overruling is impossible. The Case One dissenters would no longer face an unattractive binary choice of casting pointless votes to overturn Case One or extending Case One to its logical conclusion. Instead, they could cast their votes for the strict test, even though they believe the test to be inferior to the lax test viewed in isolation, to compensate for the Court’s activism in Case One and establish a favorable precedent in Case Two. Adopting the strict test would, in conjunction with Case One, more closely replicate the state of affairs that would have obtained had restraint prevailed in the earlier case.

Parenthetically: although a few defendants would prevail under the strict test, whereas none of them would have if the dissenters’ views had carried the day in Case One, the vast majority of defendants would lose under the strict test. In the cases where the strict test produced a win for the government, the case disposition would be the same as if the underlying right had been properly rejected in Case One.

Consider, in this connection, Caminker’s description of “sincere voting”:

the vote that represents an individual judge’s top-ranked or ideal judgment as to what constitutes the best response to resolve a discrete legal controversy, without considering the impact of his vote on the substantive collective result in his court or in other institutions.

A sincere vote, in other words, is the judge’s first-best resolution of the case before him, reached without regard to the consequences of his vote on others. Caminker contrasts this with “insincere” or “strategic” voting, which is “a judge’s decision to vote for a disposition that does not truly reflect his ‘sincere’ judgment in order to secure the best feasible outcome given the influence of his colleagues in the decisionmaking process.”

In short, despite the fact that “sincere voting” by the dissenters in Case Two would produce reversal of the conviction based on the lax test, reactivism would justify them in voting “insincerely” to produce a precedent in Case Two compensating for the activist precedent established in Case One.

The key insight of reactivism is that justices should not view court cases like law school exams, in which the court, like the student, has one chance to come up with the “right” answer. Rather, many legal issues and doctrines are interrelated and thus best thought about in relation to one another. Caminker has called this the “phenomenon of doctrinal complements,” and he rightly cites the Rehnquist Court’s “New Federalism” decisions as an example of complementary thinking about doctrine. More than a few of those decisions seem quite dubious on their own grounds, but may make some sense if, instead of providing the best answer to the discrete question of constitutional interpretation before it in any given case, the Court is viewed as trying to counteract the “blank check” that New Deal Commerce Clause jurisprudence gave to Congress.[10]

The effectiveness of strategic voting cannot be denied, I think; but is it principled? I believe it is, subject to one important caveat: namely, that the justices must always respect constitutional text and structure when they attempt to counteract earlier exercises in activism. As indicated by the wide consensus that the Constitution is law, action by judges in derogation of constitutional text is indefensible in principle. As long as the Court stays within the range of permissible outcomes delineated by the text, however, I believe the Court can and should select the outcome that produces the best overall result in conjunction with outcomes reached in prior, doctrinally related cases. This is the constitutional theory of the “second-best.”[11]

Even though the justification for second-best theory fundamentally grows out of a system of precedent, my claim is that we would likely have a system of precedent even if stare decisis were abrogated by Congress. Opponents of stare decisis uncritically assume that judges are reluctant to overrule precedent because of the existence of stare decisis, but that view is wrong. Judicial reluctance to overturn precedent is a cause, not an effect, of stare decisis. As such, abrogating stare decisis would not necessarily change judicial behavior because it would not change the underlying fact that the justices strongly prefer to adhere to prior decisions, even if they believe them to have been profoundly misguided. Like it or not, in a world where justices are reluctant to overrule precedent, reactivism may be the only viable way of correcting many erroneous interpretations of the Constitution.

Importantly, there is value in second-best solutions even apart from judicial reluctance to overrule precedent because of the manner in which second-best solutions operate in comparison to overrulings. Overrulings are all-or-nothing solutions—the preferences of the side with at least five votes are written into law, and the dissenters’ contrary preferences go completely unfulfilled. It is inevitable, however, that the balance of power on the Court will swing back and forth over time. Even though overrulings are proper and should probably occur more frequently than they presently do, a regime in which every Court majority were obligated or felt free to overrule every prior decision it deemed erroneous would inject great instability into the law and risk all-out ideological warfare on the Supreme Court.

By contrast, second-best solutions such as reactivism tend, over time, toward equilibria. Unlike overrulings, second-best solutions allow both sides, in a sense, to win to some degree. This state of affairs, in which both sides get their second-best preference (or something close to it), gives each side a stake in maintaining the status quo and, to that extent, will tend to promote doctrinal stability. Of course, some degree of instability will occur when Court personnel changes, but the attendant shifts in doctrine are more likely to occur in a fairly narrow intermediate range rather than from one polar extreme to another, the type of swings that overrulings produce. It is in this sense that activism, of the “reactivist” kind, may actually constitute restraint.

Conclusion

Given the natural judicial reluctance to overturn prior precedents, originalist judges should regard second-best solutions as both essential and principled. Those who truly believe in judicial restraint should recognize that second-best solutions, such as reactivism or exercises in strategic originalism, may often be the only way of producing results that replicate those that would have been achieved had earlier Courts practiced restraint. Having an alternative means of “fixing” the law when the justices are unwilling or unable to resort to the first-best solution of overruling makes it more likely that the law will in fact be “fixed.”

Unless originalism is saved from the originalists, constitutional adjudication will remain essentially a free-for-all in which the winner takes the spoils. Originalists and nonoriginalists alike will vote their first-best preferences, and thus originalists will find less opportunities for writing their own policy preferences into law (assuming, as I do, that originalism will impose greater constraints of judicial discretion than nonoriginalist approaches). Barring some dramatic takeover of the courts—which even a dozen or so consecutive Republican appointments to the nine-member Supreme Court could not produce—the natural result will be a drift in constitutional jurisprudence over time steadily in the direction of non-originalist outcomes. Strategic behavior will allow originalists (and nonoriginalists) a tool for moving the law back in their preferred direction without outright control on the Court. By threatening to retaliate against nonoriginalists for unacceptable forays into judicial activism, originalists can create an incentive for nonoriginalists to limit the extent of their activism (and vice versa). With activism no longer the costless affair it essentially is today, nonoriginalists should engage in less activism—and less activism will move the Court in the direction of judicial restraint, a good thing for those who care about individual liberty and maintaining limits on government power, regardless of which political party happens to be in power at any given moment.

[1] I place the terms “activism” and “restraint” in quotation marks because they lack obvious or commonly shared definition. Much ink has been spilled over whether “activism” is a useful concept and how it should be understood if used as something more than a condemnatory label pinned on decisions with which one disagrees. For my own prior contribution to this endless debate, see Stephen F. Smith, “Activism As Restraint: Lessons from Criminal Procedure,” Texas Law Review 80 (2002), 1057, 1077-1094.

[2] I recognize, of course, that Scalia’s is but one version of originalism. For a helpful (albeit hostile) account of various conceptions of originalist claims, see Mitchell N. Berman, “Originalism Is Bunk,” New York University Law Review 84 (2009), 1, 8-37.

[3] See also, for example, Robert H. Bork, The Tempting of America: The Political Seduction of the Law (Touchstone, 1990), pp. 159-60. Not all originalists share the confidence of Scalia and Bork that originalism can serve as a meaningful constraint on judicial decisionmaking. See, for example, John Harrison, “On the Hypotheses that Lie at the Foundations of Originalism,” Harvard Journal of Law and Public Policy 31 (2008), 473.

[4] The plurality decision in Casey jointly authored by Justices Sandra Day O’Connor, Anthony M. Kennedy, and David H. Souter, Scalia charged, rests on a “Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals.’” 505 U.S. at 996 (Scalia, J., concurring in part and dissenting in part).

[5] Thomas Sowell coined the phrase “Greenhouse effect” to describe the effect that lavish praise from liberal activist reporters, commentators, and elites, such as the New York Times’s Linda Greenhouse, can have in pushing Republican-appointed justices to reach liberal results. Many would cite Justices Harry Blackmun and Anthony Kennedy as examples of conservative jurists who “grew” in office (a term of derision) after entering the Court as conservatives.

[6] Richard H. Fallon, Jr. identifies some leading conservative judicial values in “The ‘Conservative’ Paths of the Rehnquist Court’s Federalism Decisions,” University of Chicago Law Review 69 (2002), 429, 446-52.

[7] Evan H. Caminker, “Sincere and Strategic Voting Norms on Multi-Member Courts,” University of Michigan Law Review 97:8 (1999), 2297, 2346.

[8] See, for example, Michael Stokes Paulsen, “Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?,” Yale Law Journal 109:7 (May 2000), 1535; and Gary Lawson, “The Constitutional Case Against Precedent,” Harvard Journal of Law and Public Policy 17:1 (Winter 1994), 23.

[9] Some might argue that overrulings would be more common if stare decisis rules were liberalized or abrogated, but that strikes me as doubtful at bestFirst of all, there is no real support for the empirical assumption that stare decisis acts as a constraint on Supreme Court justices, at least in controversial cases. See generally Frederick Schauer, “Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior,” University of Cincinnati Law Review 68 (2000) 615, 626, which cites studies finding “scant evidence” that “precedent operates as a genuine constraint in Supreme Court cases of substantial moral or political consequence”). Secondly, opponents of stare decisis overlook the critical fact that stare decisis rules exist because the justices are reluctant to overrule precedent, not the other way around. If a majority of the justices found stare decisis too constrictive, they would have exercised their unquestioned power to change or abolish them; after all, stare decisis is a judicially created doctrine. The justices have not only failed to take either step; they have taken the opposite step in recent decades, changing stare decisis rules in ways that make overrulings more (not less) difficult. See generally Akhil Reed Amar, “The Supreme Court, 1999 Term—Forward: The Document and the Doctrine,” Harvard Law Review 114 (2000), 26, 81-82.

[10] Evan H. Caminker, “Context and Complementarity Within Federalism Doctrine,” Harvard Journal of Law and Public Policy 22:1 (1998), 161, 167. Indeed, it makes little sense to think about federalism apart from the scope of the Commerce power because national power and federalism are flip sides of the same coin. Federalism, in other words, kicks in precisely where national power leaves off. As a result, where prior decisions have put too much weight on one side of the balance, justices can move back in the direction of the “proper” balance by putting a thumb on the other side of the scale.

[11] Actually, it is a weaker, more defensible form of second-best adjudication. In its strong form, the Court would be justified even in violating plain constitutional text to compensate for earlier exercises in activism which cannot be rectified directly through overruling. See Peter B. McCutchen, “Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best,” Cornell Law Review 80 (1994), 1, 22. For a sustained argument that the conservative rollback in constitutional criminal procedure was an exercise of reactivism being used to blunt the impact of the perceived excesses of the Warren Court, see Smith, supra note 1.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 01, 2016 at 15:11:20 pm

Originalism, as advocated by Justice Scalia, means interpreting the Constitution according to its original meaning, not according to the Framer's original intent.

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Independence Intelligencer
on April 01, 2016 at 15:31:36 pm

This is kind of an interesting discussion. Now we are discussing possible mechanical changes to correct known problems with the court instead of arguing that "those people over there" are causing the problems. That is a step in the right general direction in itself, and it should be applauded.

A couple of issues though.

First, the court does not have a lot of policing. It does what it wants. That makes the establishment of rules for the behavior of the court kind of difficult, especially rules imposed from outside the court.

Next, the political character of the court is more a reflection of the political character of the president and the senate than it is a reflection of its mechanics. The president and senate, whether leaning towards the Left or Right, always want more power. They tend to appoint and approve justices who support their goal. Government power shifts in that direction. No surprises there.

Therefore, to contain the court, the political character of the presidency or senate must be changed. Unlike the presidency and senate intended in the original Madisonian Constitution, both offices in our current Constitution are populist (i.e. majoritarian or democratic). They follow the direction of the statistically average voter while at the same time they operate endlessly to control, direct or influence our statistically average voter.

Unlike the senate, the court has no opportunity to exercise an anonymous vote. The justices must provide an opinion. It would be difficult to write opinions where the authorship could not be recognized. That makes the introduction of the idea of the mechanics of first and second-best voting methods is kind of interesting and constructive for a discussion. But seriously I don't see how a body of unconstrained justices, appointed for contra-constitutional purposes by a power hungry president and senate, would accept such control over their actions.

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Scott Amorian
on April 01, 2016 at 16:07:48 pm

This is a thoughtful and provocative proposal. I think, however, that it is a mistake to view to evaluate originalism's success by considering whether it has promoted judicial restraint. The goal of constitutional adjudication is to ensure that government actors are bound by the rule of law established by the Constitution. Originalism is a means of ascertaining that rule of law. Restraint is a means of implementing that rule of law in particular cases--it is a judicial posture, connoting a reluctance to invalidate government enactments unless they are clearly unconstitutional (thus, it lends the government the benefit of a presumption of constitutionality). We should instead be evaluating *restraint* with reference to whether--together with originalism--it has produced jurisprudence that promotes constitutional fidelity. I have every confidence that constitutional fidelity is a "good thing for those who care about individual liberty and maintaining limits on government power." I have considerably less confidence in judicial restraint as a means to that end.

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Evan Bernick
on April 01, 2016 at 20:24:09 pm

Out of curiosity, Evan, and for more contrast, do you have any thoughts on better assuring judicial restraint?

You are the Evan Bernick from the Institute for Justice if Google and I are not mistaken. If so you have done some interesting work on attempting to help bring about limited government, and a number of other readers and I would enjoy hearing some insights from the field if you have any you care to share.

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Scott Amorian
on April 28, 2016 at 12:59:52 pm

[…] More. […]

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