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07/16/2018

Christopher Sprigman on Judge Kavanaugh and Originalism
Michael Ramsey

At Just Security, Christopher Sprigman (NYU): What Judge Kavanaugh’s “Originalism” Means for the Country (via How Appealing).  Despite the title, it's really two criticisms of originalism and a prescription.  From the criticisms:

Courts striking down legislation, or thwarting the actions of democratically-elected officials, is something that happens so regularly in America that we take it for granted. But we should remember that what the courts are doing in these cases is extraordinary in a democracy. A judge is displacing the decision of a current majority in favor of some inconsistent rule put in place by people long dead. A judge is, in short, allowing the dead to govern the living.

That isn’t democratic. It’s necrocratic. And this “dead hand” problem is endemic to constitutionalism generally. All constitutions that are backed by judicial review sometimes privilege decisions made in the past, decisions that living voters never approved, over decisions made by democratic majorities today.

The question for how we govern ourselves isn’t whether this happens in a constitutional democracy. It does, and to some extent, it must. The question is how often, and on what basis. Originalist judges have shown little reluctance to override the decisions of current democratic majorities; they do so at least as often as judges who believe in a “living Constitution.” Are they doing so based on a reliable understanding of what the fixed, original meaning of the Constitution? Or are they acting out their political beliefs? Those are the vital questions.

... [after a extended discussion of D.C. v. Heller]

Originalists claim that their interpretive method is politically neutral. However, on the federal bench, originalism is a right-wing sport. That is no accident. Originalism pins us to the distant past. A past that predates both the tremendous growth in U.S. population and in the scope and power of the federal government starting with the New Deal and continuing through the Second World War and the Great Society programs. Originalism valorizes a distant past that can be weaponized to halt and even reverse the progressive transformation of society accomplished during that long era of liberal dominance.

Some right wing judges are hiding behind originalism, using it as a stalking horse for the very thing that originalism promises to prevent — partisan judging. These judges exploit originalism’s usefulness in imposing conservative policy preferences, but have no deep dedication to the method itself. You can see this in the selectivity with which some judges will either use or ignore originalism, depending on which way it points in a particular case. As Eric Segall and others have notedJustice Scalia, in particular, was known for this sort of “opportunistic originalism.” For these judges, they have the choice of either picking up originalism when it suits their favored outcome and discarding it in other important cases, or they may very well stick with originalism across cases as they know the framework will in general and on average provide the policy results they have come to believe are just.

But other originalist judges, the ones operating in good faith, are perhaps no less prone to imposing their partisan preferences in the name of the Constitution. These judges presumably tend to suffer, as all of us do, from a version of the confirmation bias that afflicts decision-making. Without systematic mechanisms in place to overcome such bias, they will often see certainty in uncertain arguments for original meaning when those arguments reinforce policy outcomes they like. An originalist judge who unconsciously aligns what the Constitution means with what he wants it to mean is behaving in a way that is altogether human. But it’s no way to run a constitutional democracy.

That originalism is a cover for conservative ideological judging is a common objection but (as I'll try to address in a separate post) not a very compelling one.  The dead hand objection, in contrast, seems to me to be among the more forceful.   (But the two objections are actually a bit in conflict: if originalism is a cover for conservative ideological judging it's not subject to the dead hand objection, and vice-versa).

The post then continues, in a possibly surprising turn: 

So what to do about Brett Kavanaugh, the conservative originalist? In the end, and barring some change in the current political situation, Kavanaugh probably gets confirmed. But this is where I hope that Americans are ready for some new thinking. The problem isn’t just the man, or his politics, or his interpretive ideology. The problem is, more deeply and more fundamentally, that our system has slid too far away from democracy, and too far down a road that leads to the rule of judges. The answer, I’d submit, is not to demand the appointment of fewer originalists, and more living constitutionalists, to the federal bench. Viewed from a certain altitude, originalism and living constitutionalism aren’t all that different. They are both ways of interpreting the Constitution that tend to expand judicial power at the expense of democracy.

The answer is to shrink the power of the federal courts over our lives, including the power of the Supreme Court. But how to do that given the systems we have inherited and the norms we have come to accept?

(There follow several suggestions of varying plausibility).

I don't know Professor Sprigman, so I assume he's a genuine and longstanding advocate of judicial restraint (meaning great reluctance for judges to intervene against the political branches).  Of course, judicial restraint is a very substantial and legitimate position in constitutional interpretation.  And Professor Sprigman is right to understand it as a rival to originalism, not as an ally.  As he says, a consequence of originalism is that acts of the political branches will be overridden, not infrequently, by judges' assessment of the Constitution's historical meaning.  And that is indeed anti-democratic to an extent.

But judicial restraint also carries devastating implications for the liberal constitutional project.  The anti-democratic argument applies in equal force to the iconic cases reaching liberal results.  I'll further assume that Professor Sprigman thinks judges should not be involved in, to pick a few examples, abortion rights, same sex marriage, the death penalty, habeas corpus rights for terrorist suspects, the exclusionary rule, Miranda warnings, and most if not all of the constitutional objections to President Trump's activities.    But I expect that his idea of "what to do about Brett Kavanaugh, the conservative originalist" --namely, push judicial restraint -- will have broader resonance among those concerned about the direction of the Court.   As judicial restraint becomes more of a talking point on the left (as I expect it will), it's important to press to see if its new advocates accept its full implications.  If not, it would seem to be "judicial restraint for thee [or rather, for Judge Kavanaugh] but not for me."