Inviting judges to consider the consequences of their decisions or recent practice as guides to interpretation threatens to bury originalism.
Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed significantly since then, I still believe the decision is just awful. I thought I would write a couple of posts on what is so wrong with Morrison.
Morrison involved a constitutional challenge on separation of powers grounds to the independent counsel statute. Under the statute, when there was evidence of wrongdoing on the part of the President or one of his advisers that could not be clearly ruled out as insignificant, the Attorney General was required to seek the appointment of an independent counsel from a federal court. The independent counsel was essentially independent of both the Attorney General and the President, although the Attorney General could remove the IC for cause.
The Pull of the Perception of Good Government
The first problem with Morrison is that the Court seemed especially influenced by its view that the independent counsel was an essential institution of good government. The opinion does not say this explicitly, but at the time, virtually all Democrats and many Republicans believed that the IC was necessary to police wrongdoing by the executive branch. Thus, the nonoriginalist justices on the Supreme Court were not going to strike down this essential institution that they believed was so important.
The joke, however, turned out to be on these justices (and sadly on the Constitution). As time passed, the country came to understand that the IC statute was a poor one that was not essential to good government, but instead was an engine of partisanship and bad results. Thus, the Congress let the IC statute die at the end of the Clinton presidency, with both parties saying good riddance.
Notice how this case illustrates the problem with living constitutionalism. Not only did it involve a clear mistake by the Supreme Court as to policymaking. It also involved a politically biased one. The IC statute was popular in 1987 with legal elites—Democrats and many moderate Republicans. It was only when it was used against a Democratic President that the elites changed their mind.