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Pick a Theory, Any Theory

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At this thread over at TAPPED, some commenters tried to defend Scalia’s credentials as a principled originalist who was never political. In response, I mentioned Bush v. Gore, which not only had no conceivable “originalist” justification but failed to conform even to basic standards of the rule of law in order to legitimize the presidency of Scalia’s favorite candidate. A commenter then responded with an, ah, innovative defense:

True, the court didn’t rely on originalist arguments in Bush v. Gore, but that route was arguably foreclosed to it. Otherwise, you would have it overturn precedent that forbids arbitrary and disparate treatment to a state’s voters in its different counties – a precedent established in 1963. Scalia recognizes the doctrine of stare decisis saying it is a compromise operating on all judicial philosophies, origninalism no less than any others.

I trust that the argument that — on the same week in which Scalia called for pverruling two long-standing landmark precedents that were actually directly controlling to the case at hand! — Scalia had no choice but to accept stare decisis in Bush v. Gore based on a precedent that said absolutely nothing about how ballots cast with different voting systems should be counted is too transparently silly to merit substantial engagement. But this desperate gambit can be used to illustrate why grand theories don’t do very much to constrain judges in practice.

The first reason “originalism” doesn’t have a strong constraining effect is that even serious historians will disagree about historical evidence, and law office history generally falls well below these standards. Constitutions and statutes involve agreement among sufficiently diverse parties that originalists can often cherry pick evidence from some politically congenial source to resolve ambiguities. (If you want to (inplausibly) justify Brown v. Board in originalist terms, for example, you can focus on some Radical Republicans, place less emphasis on other legislators, and ignore the state ratifiers altogether.) If that doesn’t work, you can always climb Originalism’s Ladder and define broad constitutional principles at whatever level of specificity happens to support your desired outcome. This can justify a wide range of outcomes, but a potentially inconvenient side effect is that once you permit principles to be defined at a sufficiently high level of abstraction William Brennan’s jurisprudence can be just as plausibly be called “originalist” as Robert Bork’s.

But sometimes — as with, for example, federal affirmative action statutes, or Bush v. Gore — even this won’t fly. So then you can declare that originalism can be constrained by stare decisis, and even if you’re not hackish enough to claim that Bush v. Gore is supported by compelling precedents a pretty wide range of additional outcomes can now be justified, and Supreme Court justices have wide discretion about when to apply precedent and when not to. And to borrow a point from Jeffrey Rosen, in Scalia’s specific case you can also cite “textualism” and “traditionalism,” which gives you even more discretion. The text of the Constitution says nothing about equal protection not applying to gender? No problem; you become a traditionalist, and without paying virtually any attention to the text of the Constitution simply note that the country has a long history of gender discrimination that you decide is therefore self-justifying. But the country also had a long tradition of banning interracial marriage? Look, it’s Halley’s Comet!

This is not to say that these principles have absolutely no content, especially in the case of Thomas. And as I’ve said before, even the sporadic commitment of Scalia and Thomas to “originalism” is preferable to Alito, who is similarly reactionary without much of an overaching grand theory. But the idea that “originalists” are engaged in entirely non-political or non-“outcome-oriented” judging is obviously untenable.

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