Originalism is the way we all want to be read, so why doesn't it have more adherents?
Candidate Donald Trump’s decision to provide a list of jurists from which he would appoint his first Supreme Court justice was both a brilliant political stroke and an act in the public interest—two qualities that are rarely combined. For Trump, it created favorable publicity and allowed him to rebut critics who accused him of lacking knowledge or interest in matters of governance, specifically the Supreme Court.
The list also advanced public understanding. The appointment of a Supreme Court justice is one of the President’s most consequential acts, with effects lasting decades into the future. Of course, presidential candidates can and do make vague statements about the kind of justices they will appoint: They promise “strict constructionists” or “judges with empathy.” They may vow to take some current justice on the Court as a model, pledging to appoint justices in the mold of Clarence Thomas or Ruth Bader Ginsburg. But nothing is as informative as an actual list of specific candidates that can be vetted by everyone.
Moreover, a list disciplines the President once in office. After pledging himself to a specific list of judges, he cannot compromise his commitment to a particular constitutional jurisprudence in favor of other calculations, like pleasing a key Senator, gaining an easy confirmation, ensuring the smooth passage of legislation, or just appointing a crony. Some critics said that Trump could not be trusted to choose from his list, but they were proven completely wrong.
Given the demonstrated political advantage and public interest involved in offering a list, it is striking that no candidate for the Democratic nomination has provided one of his or her own—despite the pressure to stand out in a crowded primary. The best explanations show the problems that face Democrats in raising the salience of the Supreme Court in a political campaign—problems which would also create complications for a Democratic president in appointing justices and federal judges.
One important explanation for the lack of Democratic lists is the extent to which identity politics dominates the Democratic Party. Any list offered by a Democrat would be picked apart by various identity politics interest groups for the percentage of jurists who represent that group’s identity. It would be almost impossible to satisfy all the groups. First, such groups tend to demand more than mere token representation: a list would have to at least approach proportionality to satisfy the various interests at stake. Moreover, identity groups often contain many subgroups. For instance, the blanket category of “Asian Americans” includes, among many others, Japanese, Korean, and Chinese Americans. Would having a representative of one of these groups on the list satisfy the others just because they all had ancestors from Asia? Almost certainly not. The difficulty of striking the right balance makes putting out a list just too risky.
Trump did not face that problem, because identity politics groups do not play a large role in the Republican Party. Some might claim that is the result of the Republican interest in restricting nominations to white judges. But given that Clarence Thomas is probably the most popular jurist among Republican voters, that claim is certainly false.
This difference between Republicans and Democrats also manifests itself in judicial appointments in a Presidential administration. A Republican president has a much freer hand to focus on jurisprudence because he does not need to give as much consideration to gender and ethnic balance. Of course, there are excellent female as well as male nominees and excellent nominees of all ethnicities. But many considerations, such as confirmability and party support already factor into a nomination; additional hard constraints derived from gender and ethnicity make it even more difficult to focus on appointing jurists who are likely to have the most influence. And it is well known to academics that appellate justices differ dramatically in influence. In their paper “A Tournament of Judges?” Stephen Choi and Mitu Gulati document that some judges are far more cited by their fellow jurists than others. Even Trump’s opponents admit that his nominees to the federal Court were the best-credentialed nominees of any administration, and in the long term that is likely to translate into outsize influence. This success is, in part, due to Trump’s relative freedom to choose nominees based on jurisprudence and achievement.
Division in the Democratic Coalition
Another reason that providing a list would not have benefits to a Democratic candidate is that the prospect of a more activist left-leaning Supreme Court fractures their coalition. The Democrats have an uneasy coalition of voters who are primarily interested in more material redistribution and voters who are interested in pressing progressive social issues. Of course, there are some who want to press for both, but they don’t constitute a large majority. Progressive Supreme Court justices offer almost nothing on redistribution because taxing and spending decisions are almost entirely outside their purview. (It is true that Frank Michelman, the Harvard Law Professor, found welfare rights in the Constitution, but even an Obama appointee, Elena Kagan, summarily dismissed that kind of claim as outmoded when she spoke at the Northwestern Law School.) But more progressive rights, like the right to assisted suicide, are plausibly on the agenda of a left-leaning Supreme Court. Two current justices appointed by Democrats have even suggested that voters cannot eliminate ethnic and racial preferences from state employment and educational admission—a view unpopular with white working-class voters. Democratic justices also put up roadblocks to school choice—a position unpopular not only with white working-class voters but urban black voters as well.
In contrast, the kind of judges Trump promised to appoint unite the Republican coalition. To be sure, some Republicans favor abortion rights, but they tend to discount the prospect that Republican justices will ever overrule Roe. Moreover, sophisticated analysts recognize—and pro-choice Republicans are typically highly-educated voters—that overruling Roe will not make abortion illegal in many places and will not put it out of reach for anyone able to travel. Originalist justices, therefore, appeal to almost every Republican voter.
Originalism as the Popular Default Jurisprudence
Finally, Democrats would have difficulty articulating the common characteristic that the candidates on their list would share. Republicans have no such problem. The jurists are all broadly originalists—that is, they want to give the Constitution and statutes the meaning that they were understood publicly to have at the time of their enactment. To be sure, there are various complications for translating originalism into judicial decisions, as with any interpretive theory. But in its essence, it is a relatively simple perspective.
And not only is it simple, it is also the default view of the public. The impeachment controversy shows this: everyone makes appeals to the text of the Constitution and/or the intent of the Framers. As I noted at the time of the Clinton impeachment:
the Constitution is a recipe for government, and the common man, unschooled in the intricacies of theory, understands that to follow a recipe you need to understand it according to the meaning it had to those who formulated it. Otherwise you may get an utterly different dish—one prepared to the perhaps eccentric taste of the cooks…Without originalism, [those discussing impeachment] could have spent the entire debate in fruitless disagreement about which of their many “non-interpretative” theories to choose.
Thus, yet another problem for those formulating a list is the difficulty of presenting it with a generally appealing slogan. “Jurists who will write the Democratic Party platform into the law” is obviously not an appealing slogan. Even the vague “living constitutionalism” does not capture the intuitive sense of the median voter.
Many of the Democratic candidates are offering left-wing variations of Trump’s populism. But they wisely recognize the dangers of imitating his transparency on judicial selection.