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04/23/2018

Kenneth Jost on Indeterminate Originalism and the Dimaya Case
Michael Ramsey

At Jost on Justice, Kenneth Jost: At Supreme Court, Originalism's Illusory Promise Exposed.  From the beginning: 

Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.

Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.

I've responded to the indeterminacy argument many times, but it keeps getting made, so one must continue responding.  Originalism does not claim that it will eliminate indeterminacy nor that it will "yield definite answers to hard legal questions" in all cases.  Originalism does frequently claim that it will "yield definite answers to hard legal questions" in some cases.  (If it didn't, there wouldn't be much point to it.)  The fact that Justices Gorsuch and Thomas wrote dueling originalist opinions in the Dimaya case does nothing to undermine originalism's modest claim that sometimes it resolves hard cases.  Originalism's "definiteness" argument is that it can objectively resolve hard cases more often that an approach based on judges' sense of the best outcome. 

Relatedly, originalism does not claim that it can eliminate judicial reference to personal views; it claims that it can do a better job of eliminating judicial reference to personal views than an approach that (expressly or implicitly) appeals to judges' personal views.  I don't see how the Gorsuch/Thomas debate in Dimaya undermines this claim at all.  I see no reason to think their disagreement was motivated by the Justices' personal views about the best policy outcome for the case as opposed to their views about the best reading of the Constitution's original meaning.  Originalism's objective, even where the answer is not clear, it to make the debate about something apart from the judges' preferred policy outcome.

If you want to show that originalism is indeterminate in all (or most) hard cases, it's not enough to point to one case where originalists disagree.  You need to tackle issues on which originalists mostly agree and show why they are wrong.

I should note that the later part of the post is quite fair, quoting several leading originalist scholars: 

Commenting on the two opinions [by Thomas and Gorsuch in Dimaya], Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.

Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."

Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.

(Via How Appealing.)

RELATED:  George Will also has a column on Gorsuch and DimayaGorsuch Strikes a Blow against the Administrative State.  From the core of the discussion:

Gorsuch wrote:

Vague laws “invite the exercise of arbitrary power” by “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The lack of “precise and sufficient certainty” (criteria stipulated by the English jurist William Blackstone, whose writings influenced the Constitution’s Framers) invites “more unpredictability and arbitrariness” than is constitutional. Furthermore, the crux of America’s constitutional architecture, the separation of powers, is implicated. All legislative power is vested in Congress. The judicial power, Gorsuch wrote, “does not license judges to craft new laws” but only to discern and follow an existing law’s prescribed course. With the fuzzy “crime of violence” category, Congress abdicated its “responsibilities for setting the standards of the criminal law.” So, allowing vague laws would allow Congress “to hand off the job of lawmaking.” Hence such laws not only illegitimately transfer power to police and prosecutors but also would “leave it all to a judicial hunch.”

The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice indistinguishable from legislating. Gorsuch’s principle is also pertinent to something pernicious concerning which he has hitherto expressed wholesome skepticism: “Chevron deference.”

And in conclusion:

Gorsuch represents the growing ascendency of one kind of conservative jurisprudence, “judicial engagement,” over another kind, “judicial deference.” Many conservatives have embraced populism where it least belongs, in judicial reasoning. They have advocated broad judicial deference to decisions because they emanate from majoritarian institutions and processes. Progressives favor such deference because it liberates executive power from congressional direction or judicial supervision. Gorsuch, a thinking person’s conservative, declines to be complicit in this, which raises this question: When has a progressive justice provided the fifth vote joining four conservative colleagues?

Well, just off the top of my head, Van Orden v. Perry (the Ten Commandments/establishment clause case): Rehnquist, Scalia, Kennedy, Thomas and Breyer.  But still, a fair point.

Also, I think the judicial engagement/judicial deference point is overdone.  I suspect it arises from some not-always-well-considered populist rhetoric in some of Justice Scalia's most famous opinions.  But Scalia did not really believe in judicial deference; he believed courts should not interfere with the political branches when the Constitution did not authorize them to.  His view was rooted in separation of powers, not in majoritarianism.  Nor did he, in general, "defer" to the political branches; he simply declined to intervene absent a constitutional directive to do so.  But a list of Scalia opinions invoking judicially enforceable limits on the political branches would take up many pages.