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09/29/2021

Michael Dorf on Conservative Justices and Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf: What is Justice Breyer Doing?  The post begins by discussing Justice Breyer's recent claims that the Court doesn't act politically.  Toward the end, it shifts to discussing similar claims by Justices Thomas and Barrett:

... [T]he actual voting pattern we see [at the Supreme Court] is also a far cry from what Justices Barrett, Thomas, and Breyer would have us believe. Despite cross-ideological votes in low-stakes cases and occasional surprises in high-stakes cases, ideology is a very reliable predictor of each Justice's overall voting pattern.

What's the explanation for that pattern? Justices Barrett, Thomas, and Breyer acknowledge that Justices have judicial ideologies, but, they say, that's not the same thing as a political ideology. If the Justices divide along what look like party lines, that's just because Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists.

That claim is mostly false. Yes, there are some cases in which Justices can be seen voting their methodological--or at least their legal--druthers rather than on purely partisan or policy grounds. For example, in Gonzales v. Raich, three conservatives voted for a respondent claiming that the application of federal criminal law to state-legal medical marijuana was unconstitutional. And all of the Court's liberals allowed the prosecution. Presumably legal/constitutional views about federal power, not policy views about marijuana, explain those votes. (The two Justices who could be said to have voted their policy views were Scalia and Kennedy, although it is possible to defend those votes as not simply result-driven.)

But note that Raich was not a case of any Justices reaching distasteful policy results on the grounds of their methodological commitments. It's possible, perhaps, to characterize Justice Gorsuch's highly textualist opinion in Bostock v. Clayton County that way, I acknowledge, ... [but] nothing about Bostock contradicts the supposition that all the Justices (with the possible exception of Kavanaugh) voted their policy preferences, with Justice Gorsuch then writing the opinion in a textualist style.

In any event, I'm willing to stipulate that occasionally Justices vote their methodological druthers over their ideological or partisan druthers. However, the overall voting pattern we see--in which ideology is the best predictor of a Justice's vote--and the malleability of the various methodologies, very strongly suggest that the Justices are mostly voting their values and ideological druthers, not their methodological druthers. Even if they're not partisan hacks, they're hardly apolitical.

Perhaps, but I don't think this analysis shows that Justices Barrett et al.'s claim is "mostly false."  Let's stipulate that, as Professor Dorf says, "ideology [meaning political affiliation] is the best predictor of a Justice's vote." That doesn't mean that political affiliation is causing the votes, only that political affiliation is correlated with the votes.  Let's suppose it happens (as I think is probably often the case) that in the leading constitutional disputes of the time (abortion, sexual orientation rights, death penalty, religious freedom, election law, etc.) the stronger originalist arguments favor the conservative political outcome.  That might just be coincidence, or it might be that originalism tends to favor more traditional rather than more innovative legal results.  In either case, if it's true that "Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists," then one would expect to see exactly the pattern Professor Dorf describes.

To make his claim work, Professor Dorf would need to show that conservative Justices consistently disregard the stronger originalist arguments to reach conservative outcomes.  Maybe that's true (Eric Segall thinks it is), but Professor Dorf hasn't shown it here, and I'm skeptical that it can be done.

Of course, a question remains why it's true that "Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists,"  One possibility is that originalism and textualism on balance (though assuredly not in every case) tend to lead to conservative results.  There may be a general tendency (even an unconscious one) to favor a methodology that's generally friendly to one's political affiliation.  But that's very different from saying that political affiliation determines votes in particular cases.