Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a judicial philosophy which says the Constitution is indeterminate.”It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.
As I have pointed out before, the idea that the broad Constitutional generalities that are subject to the greatest controversy can somehow be “determinate”–that conclusions can be produced that no reasonable and knowledgable person could disagree with–is absurd. (As Lindsay notes, Ronald Dworkin–who has a much greater faith in the ability of grand theory to constrain judges than I–makes this elementary point clearly in his evaluation of John Roberts.) Obviously, the idea that concepts such as “unreasonable search and seizure” and “cruel and unusual punishment” and “due process” can lead to mechinical, formalist outcomes in all concrete cases is self-evidently wrong. This is not to say that constitutional law is crudely reducible to politics, or that all constitutional arguments are equally plausible. But on no question of any significant interest does the Constitution reliably yield determinate outcomes.
These objections are well-known, so I won’t go on at great length, but Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons. The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice. The text of the Constitution does not require that it be interpreted by the use of any particular method. It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run. This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics. Second, even among its adherents “originalism” does not yield determinate outcomes. The historical record is inherently inconclusive even for trained historians, and of course law office history generally falls well below such standards. In addition to that, originalism does not answer important questions such as the level of generality at which constitutional clauses are to be interpreted. Randy Barnett and Robert Bork are both originalists, but obviously disagree on countless issues. Pick any landmark case: Lochner, Brown, Roe–and you’ll find serious originalists on both sides of the question. And finally, in practice Supreme Court justices are never fully constrained by grand theory. To find Scalia choosing his political preferences over the demands of his interpretive methodology you have to go all the way back to Raich. And even Thomas, who is a more principled originalist than Scalia, reaches outcomes in a variety of cases–most notably affirmative action and free speech–in which he doesn’t even try to justify the result in originalist terms, because it’s virtually impossible to make the case in these terms. (All of these points, I should add, can be made about any grand theory, whether used by liberal or conservative judges; the point is not to say that originalism is illegitimate, just to say that it can’t produce determinate outcomes.)
And, of course, it’s absolutely laughable for a man who signed Bush v. Gore to complain about a “politicized” judiciary. It’s not just that the majority opinion completely contradicts Scalia’s previous writings about the equal protection clause, or that even the decision’s defenders don’t claim that it could be justified in “originalist” terms. It’s that the decision was wholly unprincipled even on its own terms–the Court was unwilling to either require a legally appropriate remedy or to articulate a principle that could be applied in future cases. If Scalia’s concerned about the execessive “politicization” of the judiciary, perhaps he should start with his own chambers first.