Carson Holloway attempts to offer a mix of original public meaning and original intent, which offers an imperfect foundation for originalism.
Lon L. Fuller’s classic essay “The Case of the Speluncean Explorers,” artfully depicts the agonizing uncertainties of legal interpretation and judicial duty. Its fictional setting is Newgarth in the year 4300, where five cave explorers were tried for the murder of one of their members, Roger Whetmore. Whetmore was eaten by his companions while they were trapped within a cave for several weeks without sufficient food to sustain them all. He was chosen in a fair draw to determine who would be sacrificed so the rest could survive. The cannibals were then tried for murder after being rescued. The major drama, however, involved the judges, who struggled to determine how the law ought to apply in this strange case with the lives of the survivors at stake. Fuller’s essay serves as a playful pedagogical aid, illustrating how reasonable people can have starkly different ideas about what justice demands, how law should be interpreted, and what role judges ought to play in a republic.
Fuller’s humane depiction of the wrenching nature of legal judgment, and the internal drama experienced by judges in wrestling with interpretation, appears to be a quaint artifact to a generation taught that legal judgment is an act of power and that interpretation largely involves providing post hoc justifications for policy preferences. Today, most have lost a sense of the weight borne by judges, who have a duty to make decisions about circumstances they almost never create, using modes of reasoning they did not invent, for the purpose of explaining their decisions to deeply divided audiences with personal stakes in outcomes, while decreeing judgments to be enforced by others over whom they have no control. Legal judgment bears little resemblance to an exercise of raw power based upon personal preferences.
Sadly, today’s members of the Supreme Court feel compelled to defend that they are, in fact, behaving like judges. Justice Clarence Thomas recently denounced media portrayals thus: “They think you become like a politician.” Justice Amy Coney Barrett decried that the Supreme Court “is not comprised of a bunch of partisan hacks.” Justice Samuel Alito condemned those who “portray the court as having been captured by a dangerous cabal.” One is hard-pressed to find anyone who believes them, although their statements are quite sincere.
While controversy about the Court isn’t new, there is something deeply troubling about current attacks. Today’s critics almost unanimously care little about the reasons for judgment. Praise or blame depends upon whether decisions accord with the critics’ favored policy outcomes. Of course, the subtext for much of the vitriol is the future of Roe v. Wade and abortion is an issue about which almost everyone feels very passionately. Yet abortion is every bit as divisive as slavery had been in the antebellum period and critics then did not reflexively discredit the Court as entirely partisan after its awful decision of Dred Scott v. Sanford. Abraham Lincoln disagreed vehemently with Dred Scott but he employed legal reason in contending that the Court’s decision was inconsistent with the intention of the Founders and believed that the decision should bind only the litigants.
What Has Changed?
Worldviews within higher education have changed. Today’s educated citizens overwhelmingly believe it is impossible for a judge to behave with some modicum of objectivity. Most believe all judgment is an act of will or an exercise of raw power. Convergent bodies of thought portray legal interpretation as nothing more than legislation from the bench. Among the most significant of these are empiricism, legal realism, and constructivism.
Scholars studying the Supreme Court from an empirical perspective conclude: “that ideology–usually measured via partisanship–is among the most important factors shaping judicial decision-making.” Among the tools used to measure ideology is the Supreme Court Database at the Washington University in St. Louis, which classifies rulings and votes according to ideology. Also popular is a method that uses the voting patterns of justices as a group to estimate the utility maximization patterns of each justice to generate a Martin-Quinn score. Prior to the death of Ruth Bader Ginsburg, Martin-Quinn scores produced a ranking of justices in order of preferences from “most conservative” to “most liberal” as follows: Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, John Roberts, Eileen Kagan, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.
An empirical perspective alone runs the risk of painting too simplistic a picture of what is involved in the act of judging, while it also tends to prove what everyone already knows. Most people expect a judge’s worldview to shape their judgments, and judges are obviously chosen in part because of their beliefs. This was true in the nineteenth century, when John Adams’s administration ushered the midnight appointments of Federalist judges to ensure Jefferson’s Democratic-Republicans wouldn’t dominate all branches of government. But having a perspective doesn’t equate to judgment being an assertion of policy preference. Outcomes can be measured, words can be coded, albeit subjectively, yet the internal dispositions of judges to keep open minds in spite of their own perspectives isn’t so readily measurable. The best indication of fair-mindedness is found in the reasons for judgment, most of which are far more subtle than the categories or codes created by empirical researchers. As Philip Hamburger noted, judicial independence is fundamentally about creating a space for an honest internal struggle, cognizant of one’s limitations. When this is done earnestly, one may say the judge is as objective as is humanly possible.
While empiricism runs the risk of being reductive in not capturing the internal struggle involved in judging, empiricism combined with legal realism generates cynicism. Legal realists, such as Karl N. Llewellyn, put forth the unremarkable insight that many laws are indeterminate. From this, they conclude that the meaning given to rules ultimately depends upon the person giving them meaning and those meanings tend to depend upon the judge’s policy preferences. In simplistic terms, legal realism stands for the proposition that judges often create law, they do not simply interpret it. In a more sophisticated variant, Lee Epstein, William M. Landes, and Richard A. Posner believe judicial law-creation isn’t based purely upon the personal preferences of judges but results from the structure of the judicial system, which funnels indeterminate rules toward the Supreme Court.
Legal realism contains a grain of truth in recognizing textual uncertainty can bedevil legal interpretation but this insight isn’t particularly novel, nor does it support the legal realist’s forceful conclusions. James Madison spoke of indeterminacy in Federalist 37: “…no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.” The reality of ambiguity and the possibility of error are addressed by judges as they proceed with an attitude of humility in being conservative in the act of interpretation. Hamburger noted that common law judges attend to procedural questions wherever possible, encouraging parties of a dispute to settle substantive issues among themselves. It may be added that legal interpretation typically depends upon a factual context; change the circumstance and that can alter how judges will decide a similar case in the future. Humility involves judging as narrowly as possible and grounding judgment within factual contexts rather than abstract dogma alone. Judges understand themselves to be duty-bound to judge narrowly and concretely as they sincerely try to apply law, rather than create it.
Constructivism is perhaps the most troubling contemporary perspective for the Supreme Court. Its central tenets are that ideas are a form of power, norms are created intersubjectively through discourse, and discourse creates “truth” for those socialized to internalize norms. From this perspective, the Supreme Court is a battleground over control of a narrative. Critical legal theory, as a variant of constructivism, seeks to unmask the hierarchies of power inherent in discourse, and to change the discourse itself as a means of transforming society. In America today, the radical constructivist narrative favors progressive ideals. However, a variety of authoritarian belief systems could find constructivism very useful. Its origins lie with Nietzsche, who did not value equality nor did he admire victims of oppression. Radical constructivism can be compatible with the narratives of politburos or populist demagogues. Whatever the vision, when one believes in the power of ideas to transform society, the single greatest transgression is to express a verboten thought. Illicit ideas are a kind of assault upon a fragile, socially constructed order.
Constructivism is useful in explaining processes by which people are socialized but it minimizes the importance of human reason or conscience, and its radical variants are intolerant of differences in beliefs. It denies at its peril the truths upon which Thomas Jefferson drafted the Virginia Statute for Religious Freedom to protect natural rights: “Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds.” Constructivism also denies the worthiness or possibility of neutrality, which is a core virtue judges strive to attain. Neutrality involves evenhandedness in ensuring, however imperfectly, that rules are fair to persons of very different beliefs. The judicial aspiration for neutrality reflects a commitment to respect concrete people more than the ideas they espouse. Fairness is tested in part by considering whether a rule is acceptable in a variety of foreseeable contexts in which it might be applied.
Does Originalism Advance These Virtues?
Originalism’s virtue is distinct from those of open-mindedness, humility, and evenhandedness. The quest for objectivity animates much of originalist thought, although originalists do not invariably justify the approach in these terms. Originalism strives for the truest interpretation of the Constitution and other relevant foundational documents. In believing there is a truth, or at least that the reasons underlying legal doctrine can be discovered to be false based upon evidence, it remedies legal realism and constructivism, both of which reduce law to relations of power. A broad consensus exists among originalists that correct meaning is discoverable using historical methods to derive answers independently of will or passion. Vague words or silence within the Constitution are not invitations for judges to impose policy preferences but to delve deeper into historical sources and language to find hidden meaning.
To the extent that originalism emphasizes the need for proper method in deriving conclusions, it has some affinity with empiricism. Just as the useful scientific method can shed light on many mysteries of the natural world, so too, originalism illuminates the meaning of texts. However, just as the scientific method can limit the domain of what scientists believe counts as knowledge and tends to be reductive about the nature of life, so too, some variants of originalism may artificially limit the purview of what counts as knowledge within the domain of law. Taken to an extreme, it risks stifling the humane struggle within the soul of a judge to engage all relevant knowledge bearing upon a case. As Hadley Arkes notes, moral knowledge can properly weigh upon a judge. So too, knowledge of the particularities of a case, including the persons involved in a conflict and the unexpected events or circumstances that have brought them to court, is not simply background music. The facts surrounding a legal tangle can be as relevant to the law as the words in the Constitution.
In “The Case of the Speluncean Explorers,” the strict constructionist and the positivist judges blinkered themselves to the tragic circumstances and they condemned the rescued cave explorers to death. Perhaps that was the right thing to do but the judges did it with regret. The fictive case illustrates that methodologies can have great benefits as well as heavy costs. Originalism, as a branch of legal positivism, is a weighty and constructive participant in the perennial drama about the relationship of law to justice as well as the role of an impartial judge. It does not undermine the judicial virtues, although it can tilt strongly in the direction of narrowing the scope of a judge’s internal struggle in weighing competing sources of evidence.
The Supreme Court’s legitimacy is rooted in virtues encompassing more than a method of interpretation. The act of judging requires an interior disposition, which cannot be readily observed or measured through empirical means, to keep an open mind in assessing evidence. It requires a sense of humility, at odds with legal realism, to innovate as little as possible in the face of indeterminacy, to remain tethered to the circumstances at hand, and to encourage the parties to settle their own substantive grievances wherever possible. It requires a commitment to respect the freedom of persons of diverse beliefs in applying laws evenhandedly that cannot be squared with radical constructivism. And, as originalism instructs, it requires a commitment to objectivity, which leads judges to delve deeply into sources of knowledge recognizable as within the domain of law. Whether the Supreme Court can retain its legitimacy in exercising the virtues associated with judging, when these are out of touch with the dominant beliefs of the 21st century, remains to be seen.
“The Case of the Speluncean Explorers” might be instructive in thinking about the alternatives. In the land of Newgarth, a brief civil war had emerged because judges exceeded their proper limits, which led to a breakdown of constitutional order. When pure power reigned, the judges lost. Newgarth was fortunate to reconstruct itself with a Supreme Court that had a sense of its own limits so that its judges could again struggle earnestly, seriously, and imperfectly in coming to terms with thorny legal and moral questions.
Newgarth’s war over its constitutional order ended well. Can the same be said for America’s?