Monday, October 12, 2020

"Originalism" and the Idea Judges Should be Umpires, Not Policy Makers

Today begins the Supreme Court confirmation hearings for Amy Coney Barrett.  A former Notre Dame law school professor and current judge on the 7th Circuit Court of Appeal, Coney began her legal career as a clerk to Judge Laurence Silberman of the D.C. Circuit Court of Appeals before she moved on to clerk with Justice Antonin Scalia of the United States Supreme Court.  She, like Scalia, believes in the judicial philosophy known as "originalism."

I had a lot of respect for Scalia.  The only black mark in his stellar career was Employment Division v. Smith, a nonsensical decision he authored which effectively lowered the First Amendment religious free exercise clause to the level of a common statute.  The case led to conservatives and liberals, even the ACLU, to join together to pass state and federal religious freedom restoration acts to undo the assault on religious freedom permitted by Employment Division v. Smith.  Note:  It is only in recent years that liberals backed away from the support of religious freedom.

Judge Amy Coney Barrett

My admiration for Justice Antonin Scalia is based mostly on his insistence on a coherent judicial philosophy which he labeled as originalism.  (Unfortunately, it was a judicial philosophy he oddly did not follow in Employment Division v. Smith.)  I have actually never been fond of that term which is an overly-simplistic description of a philosophy that is actually much more complex.  

The first step in "originalism" is to look at the actual wording of the constitutional provision or statute that is to be interpreted. This step is known as "strict constructionism" or "textualism."  If it is not clear from the actual wording how it is to be interpreted, you look at the original intent of those who drafted the provision or statute.  Finally, if the situation is still not clear, judges should defer to the democratic process.  With "originalism," it is not the job of judges to enact policy.

Critics of originalism are quick to point out problems with this approach.  Language used in the Constitution and statutes is sometimes antiquated, and intent often cannot easily be ascertained, if at all.  And, with regard to Constitution, do you look at the intent of the drafters of the provisions or those who ratified it?    Because of these problems, critics of originalism assert the philosophy is "dangerous."

When you ask critics of originalism though what philosophy they advocate in its place, you generally hear crickets in response.  If they respond at all, they offer the vague assertion that the Constitution and statutes should be "living."  Well, what they heck does that mean?  If you do manage to get clarification, it is an assertion that judges should be free to adopt whatever interpretation of the Constitution or statutes they deem best.   So then you follow up by asking if this means judges should have no limits on their authority to interpret the law?  Oh, no, critics of originalism insist judges will still be limited. But what are those limits. They can never articulate those limits.  Bottom line is that they are perfectly fine with unelected federal judges enacting public policy, well as long as those are liberal polices they prefer.

Trying to get an anti-originalist to articulate a coherent judicial philosophy is like trying to clear fog out of a room by waving a broom.  You'll get nowhere.

While the Democrats have a legitimate gripe regarding the hypocrisy of how the Republicans treated Merrick Garland compared to their rushing Barrett through confirmation right before the election, they are wrong in criticizing her judicial philosophy.   We need judges, particularly those on our Supreme Court, to return to the role of interpreting the law rather than making it.

OOP's short takes:

  • News just broke that Joe Morgan has passed away.  Since August 31st of this year, Hall of Famers Tom Seaver, Lou Brock, Bob Gibson, White Ford, and now Morgan have died.  God must be assembling one hell of a baseball team.  I'd be a bit concerned if I were Juan Marichal right now.


Kevin said...

Paul I agree with your article. Good thing Trump is in office or we would have 3 more liberal judges on the Supreme Court right now. Also sad to hear Joe Morgan passed away. Even though I couldn’t stand The Big Red Machine Joe was a great player and and seemed like a great gentleman.

TableTopJoe said...

Mr. Ogden: I challenge your reasoning to explain his dissent in Obergefell. He claims that the "original meaning" of "equal protection of the law" did not apply to same-sex relationships. In other words, "Adam and Steve" aren't entitled to equal legal protection as "Adam and Eve." The 14th Amendment says "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." If both Adams die intestate, why does the "textualist" view of the Constitution demand that Eve and Steve be treated unequally? Is it just that conservatives want to impute meaning to text? What is ambiguous about "equal protection of the law"?

Paul K. Ogden said...


I don't think it's a coincidence that the one thing Trump has succeeded with while in office, the appointment of federal judges, is something he totally outsourced (to the Federalist Society and Mitch McConnell.) Unfortunately, I don't think the three SCT justices though are worth it. It's going to take a generation to repair the damage to the country and to rebuild the Republican Party. As I said on the evening of 11/8/2016, socialism and the Democrats won when Donald Trump won, becoming the face of the Repulbican Party. I'm being proven correct on every election that's taken place since then.

Joe Morgan was one helluva of a ballplayer, possibly best second baseman ever. Didn't care for him too much in the broadcast booth though. Morgan didn't believe in the Moneyball movement, which I strongly support - though there are many new stats I don't quite understand yet. In the last six weeks we've had God call up several HOF baseball players - Tom Seaver, Lou Brock, Whitey Ford, Bob Gibson, Joe Morgan. He appears to be assembling a heck of a baseball team. I'd be worried though if I my name were Hank Aaron, Willie Mayes or Juan Marichal.

Paul K. Ogden said...


That's a good question. From what I gather from your point, you're saying that "equal protection of the laws" is non-ambiguous and, therefore, there is no reason to look to look at underlying intent. That's the way "originalism" is supposed to work.

But I don't agree with the premise that "equal protection of the laws" is an unambiguous. We have long treated different groups differently under the law, before and after the 14th Amendment equal protection clause was adopted, as long as it's supported by a good rationale for doing so. We don't require that women register for the draft while we make men. In many states if you are an incarcerated felon you don't have the right to vote while if you're out you do. We treat smokers differently from non-smokers, ostensibly for public health reasons. We have a whole body of law that's been developed (whether to apply the rational basis or strict scrutiny test depending on whether a fundamental right or a suspect classification of people is involved) around how to apply the equal protection clause. Your position would seem to throw out all that law in favor of an absolute position.

I get the argument. I just don't agree that the Constitution and accompanying Bill of Rights creates absolute, inviolable rights. Whether it's free speech, the right to an attorney, the right to a jury trial, etc. we've never treated those constitutional guarantees as absolutes.

Thus, it makes sense that you look beyond the actual wording of the Equal Protection Clause for its intent? What was meant by the provision? Well the Constitution didn't mandate states allow same sex marriage before the 14th Amendment was adopted and we didn't have it for 150 years after. It was a right the SCT didn't "find" in the Constitution until 2015.

I'm not against same sex marriage and would have supported it if in the legislature. I am against unelected federal judges reinterpreting constitutional provisions to include those policies that they deem "good." What's going to happen when our new conservative federal judges start using the same approach, i.e. reinterpreting constitutional provisions and statutes to mandate conservative polices they deem "good?" (In fact, they're starting to do that.) Liberals are going to finally realize the "living constitution" approach they have long favored wasn't such a good idea after all.

TableTopJoe said...

So, Mr. Ogden, I ask what your limiting principle is.

You seem to support unequal protection by the law in certain instances and look to "the original intent" to get the results you want. I note that when you talk about how rights are NOT inviolable, you omit the 2nd amendment. Is that to say that I have a constitutional right to own an Abrams Tank or a F18 presuming I can afford it? How about a hydrogen bomb?

My point is that "originalism" seems to be a canard that conservatives use to justify their own results-oriented jurisprudence. For example, I'm not aware of any "founding fathers" writing on gay marriage, one way or the other. I'm likewise not aware of any of the founders' opinions on health insurance or whether the right to own a fighter jet is consistent with the 2nd Amendment.

Can you explain why I'm wrong to conclude that "originalism" is anything but post hoc justification for results-oriented jurisprudence?

Anonymous said...

Muslim extremists have taken over the Supreme Court. Oops, I mean Christian extremists. There really isn't any difference.

Paul K. Ogden said...


"My point is that "originalism" seems to be a canard that conservatives use to justify their own results-oriented jurisprudence."

You are absolutely correct that originalism can be misused to justify judicial activism. But it is at least a limiting philosophy, even if it is sometimes abused in application.

But that brings me back to my original point, liberals (they're usually liberals but not always) are good at pointing out problems with originalism, but they can never articulate any coherent judicial philosophy that would guide judges in rendering decisions. The only guiding principle for them seems to be whether they like the policy adopted by the judges via the guise of interpretation of the law or constitutional provision. Good policy = correct interpretation.

What happens when the day comes that conservatives become the judicial activists, enacting conservative policies? When that day comes, liberals may well be the ones pushing for originalism to limit those judges.

I am a great believer that courts need to defer to legislative bodies when deciding issues.