« Balkin on Court Packing and Court Regularizing
Mike Rappaport
| Main | Philip Hamburger: Delegating or Divesting?
Michael Ramsey »


John McGinnis and Mike Rappaport on Trump's Judges Will Bring America Together
Mike Rappaport

Recently, John McGinnis and I published an op-ed piece in the Wall Street Journal entitled "Trump’s Judges Will Bring America Together."  (The title was, of course, supplied by the Journal.)  The piece was published after Ruth Bader Ginsburg's death, but before Amy Coney Barrett was nominated.  Unfortunately, I forgot to post about it, but the points still stand.  Here is an excerpt: 

The most important result for the judiciary of confirming a third Trump Supreme Court nominee and re-electing Mr. Trump would not be any specific set of decisions but the maintenance and strengthening of a culture of originalism. That would not only improve America’s legal system but help bridge the country’s broader political divisions.

Mr. Trump’s judges are self-conscious originalists and textualists, and they will gradually change the jurisprudential weather.

Lawyers want to win cases. An originalist culture means more briefs will canvass the Constitution’s original meaning and dig into the legal and historical background of constitutional provisions. This kind of briefing will happen not only at the Supreme Court, but also in appropriate cases in the lower courts.

Federal courts entrenched in originalism over time would move even left-liberal scholars to investigate original meaning in the hope of finding something to persuade judges. That would be a welcome change. Originalism is greatly enriched when professors with different ideological perspectives practice it. Legal practice as a whole benefits from people of diverse ideologies contributing knowledge of original meanings.

We then conclude with a discussion of how originalism would revive the constitutional amendment process, which would help address the polarization that afflicts us: 

Originalist culture can also revive the possibility of constitutional amendments. When the legal culture permits justices to update the Constitution to create new rights or principles, like the right to abortion, social movements naturally focus on getting their preferred candidates appointed to the high court. But if originalist decision-making is sustained for a generation, activists would eventually turn to amending the Constitution as a way of advancing their causes. That process has previously enacted great improvements to America’s fundamental charter, including the elimination of slavery, the establishment of equal rights without regard to race, the prohibition of racial discrimination in voting, and the extension of the franchise to women.

Because constitutional amendments require broad consensus, advancing one prompts activists and legislators to engage in a long period of debate and persuasion. The pursuit of such broad agreement reduces politicians’ incentive to treat each other as enemies. Constitutional politics is a politics of respect and principle, which could replace today’s bare-knuckled combat, in which warring interest groups are mobilized to construct narrow majorities.