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08/11/2018

Aziz Huq on Originalism and the Kavanaugh Nomination
Michael Ramsey

At Politico, Aziz Huq (Chicago): Why You Shouldn’t Care Whether Kavanaugh Is an ‘Originalist’.  An excerpt:

The test of a judge’s mettle is not whether they are an “originalist.” That term just isn’t as illuminating as many think. All judges, whether liberal or conservative, account for the Constitution’s original understanding at times. All also rely on other sources of law. Even as legal scholars have refined precise definitions of originalism, the heat of partisan debate has reduced the term in public life into little more than code for substantive positions on abortion, gun control and the like.   

As the public wearies of the ensuing charade, both Democrats and Republicans have strong incentives to ask better, more revealing questions of Kavanaugh. Those questions would illuminate where his appointment will take the Supreme Court and the country.

Originalism wasn’t always the topic du jour. In 1955, John Marshall Harlan was asked only three questions about his judicial philosophy, a mere two percent of the questions posed. The term first came to public prominence as deliberate riposte to what President Ronald Reagan’s Attorney General Ed Meese called the Warren Court’s “radical egalitarianism and expansive civil libertarianism.” In a landmark speech to the American Bar Association in 1985, he championed  instead “the jurisprudence of original intention.”

Originalism has since been shellacked by legal scholars calling it incoherent and internally inconsistent as a comprehensive theory of the Constitution. Many, including me, readily acknowledge that original understandings properly play some role in constitutional law, but resist the idea that they can or should squeeze out all other considerations.

But for a long time, it seemed as if Meese’s heirs had prevailed with the public, if not the legal academy. Even as liberal legal scholars seized on the slogan of a “living constitution”—i.e, a vision of constitutional law evolving and adapting to new political and social conditions—in response to Meese, originalism’s advocates doubled-down on the notion that originalism is simply “common sense” about what judges should do. As a political strategy, this move has paid dividends. Liberal senators have been caught in a rhetorical bind: Either they ask vapid questions about “judicial philosophy” that accept the misleading assumption of Meese et al. that a single comprehensive principle could explain everything that judges do. If they instead focus on what judges in fact do in cases, they can be accused of being improperly ends-oriented because their questions seem to bear on specific issues or litigants.

Professor Huq is an outstanding scholar, but he's oversimplifying a lot here.  I don't think any originalist-oriented judges (and very few originalist-oriented scholars) think that originalism "can or should squeeze out all other considerations" or that it is a "single comprehensive principle [that] could explain everything that judges do."  In particular, most think that originalism must accommodate precedent to some extent (it seems like that would be a good question to ask Judge Kavanaugh, but I think I know roughly his answer).  And many agree that originalism does not provide answers in all constitutional questions, leaving some matters to be decided by the application of default rules like a presumption of constitutionality or by constitutional construction.

He continues: 

But most importantly, judging is not a matter of original meaning or nothing. In most hard cases, all conscientious judges acknowledge the relevance of many sources. No judge of whom I am aware denies that they look at text, original understanding, the structure of the Constitution, the government’s historical practice and past judicial precedent. Every justice, included famous so-called originalists Thomas, Antonin Scalia, and Neil Gorsuch, routinely rely on all these sources when interpreting the Constitution.

Agreed.  But the key consideration, which he omits, is whether judges look to their idea of what the Constitution should say given modern circumstances.  That's what really defines originalism, which denies that judges should have this power, at least where the original meaning can be ascertained.  By caricaturing orginalism, Professor Huq manages to avoid the central issue.

The then shifts to some alternative questions: 

So, originalism isn’t the whole game, and it’s not very illuminating one when it’s played. Even if it is possible to imagine a wholly coherent originalism—and I have my doubts—that’s not what we have seen on the bench, nor it is what we are likely to see in future.

In this light, it is perhaps unsurprising that a majority of Americans no longer take originalism as the single touchstone of a good judge. To speak to those Americans, senators need to pose Kavanaugh a different set of queries. But if the action lies elsewhere, what questions might senators of both sides ask? Consider three.