Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
Political Versus Principled Judging
In discussing Justice Gorsuch’s much-discussed vote with the Court’s liberals in Dimaya v. Sessions, my L&L co-contributor, John O. McGinnis remarked in passing, “originalism cannot be captured by [the] attitudinal model which sees judges as politicians in robes voting for policies they like.”
Yes. . . . But.
I want first to chat about the attitudinal model and judging generally. I plan to consider McGinnis’s passing claim about originalism and Gorsuch’s vote (with which I don’t necessarily disagree, but . . .) in a subsequent post.
The attitudinal model, as McGinnis points out, posits judges are policy-motivated actors. This applies most of all to Supreme Court justices because, sitting on the highest court, there is no possibility further legal appeals. (Hotly contested among judicial scholars in political science is the extent to which extra-judicial mechanisms, most notably the possibility of congressional discipline, but also constitutional amendment, might constrain Supreme Court decision making and so constitute non-legal routes of “appeal.”) The claims of the attitudinal model stand in stark contrast to the claim, and aspiration, that judges base their decisions on objective application of neutral legal rules.
As a normative matter, I would always hope that any judge, no matter his or her partisan ideology or affiliation, would neutrally implement his or her considered legal philosophy in judicial decisions without an eye to whether the decision advances the judge’s partisan policy preferences.
Indeed, I believe, for the most part, most judges, even Supreme Court judges, consistently make non-outcome based legal decisions. At the same time, I tend to believe most of the studies in political science showing statistical associations between (proxies for) partisan ideology of judges, particularly Supreme Court justices, and their decisions. I plan to explain in my next post why these two claims do not, as might fairly seem, flatly contradict one other.
In this post, however, I want discuss political judging more generally in the context of the American constitutional system. Indeed, without ever endorsing unprincipled judging, it is nonetheless the case, from the outset, constitutional framers anticipated the likelihood of some political judging. While certainly intent on inculcating a judiciary with aspirations to make law-based rulings, they nonetheless were too clear-eyed to eschew a hefty dose of realpolitik in how they believed judges would behave.
There is no reason to excuse judges as an entire class from Madison’s observation in Federalist 10, “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.” It is too much to hope only non-political judges will always people the bench.
More pointed is Alexander Hamilton’s discussion of political judging in Federalist 81. It’s worth quoting him at length. When reading the quotation, however, note Hamilton fully anticipates policy-oriented judging at least occasionally. To paraphrase Madison, Hamilton did not assume enlightened judges would “always be at the helm.” Secondly, however, he thought professional attributes and institutional environment would set limits on the willingness and ability of judges to indulge in policy making whatever partisan policy inclinations they might have. Of note, for Hamilton, the institutional environment “alone” provides “complete security” against judicial intrusion into legislative policymaking. Here he writes explicitly of the impeachment power.
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.
Note the realpolitik in Hamilton’s expectation of judicial behavior. “Particular misconstructions and contraventions of the will of the legislature may now and then happen.” He expected, despite everything following in the paragraph, judges would occasionally impose on the legislative policy process. Hamilton assumed judges would be policy motivated and would, some of the time, indulge their policy inclinations in judicial decisions.
For Hamilton, the “complete security” against a judiciary far-gone in political decisions rested in the impeachment power. Did this enforcement mechanism soon turn into an empty threat?
Chief Justice Rehnquist famously argued in his book on impeachment that the failure of the Senate to convict and remove Samuel Chase in his Senate impeachment trial set a precedent that justices would not be impeached for policy disagreements. I’ve always wondered about the claim, given Rehnquist also noted federal judges stopped making partisan harangues from the bench after the Chase affair. (So perhaps the impeachment had its effect, to deter judicial misbehavior.) Nonetheless, supposing Rehnquist’s claim to be correct, Hamilton’s “complete security” against judicial policymaking hasn’t been invoked for over 200 years.
To be sure, as Robert Dahl pointed out in his famous 1957 article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” we should not anticipate Supreme Court policy making will often be controversial even when it occurs. The nomination and confirmation process almost always guarantees appointment of Supreme Court justices from the political mainstream of American (elite) society.
The few times the Supreme Court faced serious political trouble from the political branches of the government resulted from ideologically sharp and deeper-than-usual electoral turnover in those branches. Because of the speed and depth of changes in the political branches, the policy preferences of the justices on the Court became significantly misaligned with those branches. This occurred most notably in the shift from Federalist control of the national government to Jeffersonian control after the 1800 election (leading to Chase’s impeachment) and the 1932 and 1936 elections (leading to FDR’s court-packing plan).
More politically ambiguous were successful congressional efforts to change the number of justices on the U.S. Supreme Court in the 1860s, first increasing the number to ten in 1863, then decreasing the number to seven in 1866 (preventing President Andres Jackson from appointing any justices), then increasing the number to nine again in 1869.
These dramatic shifts in institutional preferences of the political branches occur only rarely, however. Thus, as a practical matter, Supreme Court justices can pursue policy in their decisions without fear of impeachment. In a two-party system in which neither party usually holds an overwhelming majority in both congressional chambers, Supreme Court justices can, with near impunity, pursue political goals that align with the policy preferences of only one of the two congressional parties. In ordinary times, neither party alone holds sufficient legislative power to impeach and remove policy-oriented justices on the grounds of policy disagreement.
As a practical matter, then, impeachment as security against judicial usurpation of legislative policymaking will hardly ever bite. Per the institutional mechanism Hamilton proposed as providing “complete security” against the prospect of significant judicial policymaking, it has turned out to be a paper tiger, except under exceptional circumstances.
Noting this, however, does not answer the question of how often sitting Supreme Court justices might indulge their policy preferences, let alone whether originalist justices indulge these preferences less than other justices, or even not at all. I’ll chat more about those questions in my subsequent post. The point here is, even at the founding, few thought judges immune from the motive and means to engage in policymaking, at least occasionally. Note that no one has argued judges should behave this way, at least not generally. As a matter of realism, however, commentators since the founding have recognized judges will sometimes act politically in their rulings. So a weak version of the key claim of the attitudinal model has, as it were, always been with us. The questions remain, how much do they do so, and how much might changes in the institutional environment anticipated at the founding, and since the failed Chase impeachment, changed the willingness and ability of judges to indulge their political preferences in their decisions?