« Joel Alicea: Practice-Based Constitutional Theories
Michael Ramsey
| Main | Christine Kexel Chabot: The President's Approval Power
Michael Ramsey »


Richard Fallon: Selective Originalism and Judicial Role Morality
Michael Ramsey

Richard H. Fallon (Harvard Law School) has posted Selective Originalism and Judicial Role Morality (59 pages) on SSRN.  Here is the abstract:

The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court’s actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings.

This Article defines and documents the phenomenon of selective originalism. Having done so, the Article then explores the cultural and jurisprudential conditions in which selective original-ism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The Article criticizes selective originalism for its inconsistency and intellectual dishonesty. But it also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises?

We would misunderstand selective originalism, I argue, if we labeled it as disingenuous and probed no more. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to adhere to original meanings in some cases, though not in all. But why? The answer, I argue, contains lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices’ functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal. It chooses its own cases, typically for the purpose of changing the law (even if only by clarifying it), and its decisions bind all other courts. In light of the Court’s distinctive functions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law. Though role morality is contestable, it can, in principle, be determinate and binding.

Viewing the Justices as subject to obligations of role morality does more to illumine than to resolve many of the issues that the Court confronts, but it should lead to unanimous agreement on one point: There is no plausible defense for the selective originalism that the current Justices increasingly practice.

At Legal Theory Blog, Larry Solum says: "This paper will be widely read and discussed.  Highly recommended.  Download it while it's hot!"

I agree judges should not be selective originalists, in the sense of arbitrarily applying originalism some times and not other times.  But I think criticisms in this direction may overstate for at least two reasons.

First, originalist judges act in a world of widespread nonoriginalist precedents and assumptions.  Judges don't have the resources or institutional capacity to reconsider the foundations of every line of doctrine that comes before them, particularly when the parties take the nonoriginalist foundations for granted.  Moreover, most if not all originalist  judges believe themselves constrained by precedent, including nonoriginalist precedent, to a substantial extent.  It's true that originalist judges (and originalism generally) could do more to develop a fully articulated approach to precedent.  But very often when one sees originalist judges using nonoriginalist reasoning and reaching nonoriginalist results, it stems from the complications of adjudication against the backdrop of decades of nonoriginalist decisions.

Second, it may often be that what is described as an originalist judge using nonoriginalist reasoning is, on closer examination, instead an originalist judge using weak originalist reasoning that the critic finds unpersuasive.  For example, it's very commonly said that the Court's decisions on state sovereign immunity are nonoriginalist (principally because they seem to diverge from the text and purpose of the Eleventh Amendment).  However, at least in Justice Scalia's view, those decisions rested on a background understanding in the founding era that the "judicial Power" vested by Article III didn't extend to suits against a sovereign without its consent.  (I discuss this point in my paper on Scalia's constitutional textualism, here, Part I.A).  That's an originalist claim.  It may be an unpersuasive one.  But that just means it's bad originalism, not that it's nonoriginalist.

To be sure, I agree that it's sometimes unclear why judges use originalism in some cases and not others, and that this is a problem.  (It seems to me this is at least a much a problem for nonoriginalist judges who use originalist arguments when it suits them).  But I think it's important not to overstate the scope of the problem.