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07/12/2020

William Baude: Conservatives, Don’t Give Up on Your Principles or the Supreme Court

In the New York Times, William Baude: Conservatives, Don’t Give Up on Your Principles or the Supreme Court -- Some are turning away from a founding idea, originalism.  From the introduction:

For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.

And from the conclusion:

These decisions show that while originalism had great force at the court, it is not a juggernaut. The justices disagree about how to interpret ambiguous provisions and about the role of precedent; originalists disagree among themselves about how to balance text and other context.

These disputes are healthy. Even if the court does not get every decision right (which it does not), it demonstrates a widespread commitment to the method of originalism, in which the meaning of the Constitution as enacted by the people is paramount and judges can interpret it but cannot alter it. Originalism is foundational to our law, even though the justices sometimes disagree in applying it and even though the role of precedent remains fraught.

Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.

But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.

Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.

Agreed (at least as to the last part).  But originalism can't transcend our moral disagreements unless liberal Justices (sometimes) vote for conservative results on originalist grounds.  And if they won't, conservatives may (like Professor Vermeule) decide originalism is a bad deal.

Thanks to Michael Perry for the pointer.