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On Conservative “Legal Methodology”

Supreme Court Associate Justice Antonin Scalia poses with his family in his chambers before court ceremonies on Friday September 26, 1986 in Washington, D.C. Pictured are, front row, from left: Margaret Jane; Justice Scalia, Christopher and Mary. In the back are, from left: Mrs. Scalia, Ann Forrest, Elizabeth, Matthew, Eugene, John and Paul. (AP Photo/Bob Daugherty)

As additional reading related to Paul’s post on Michael McConnell’s monument to bad faith, I think we’ve both linked it recently, but I strongly recommend Richard Posner’s piece on Antonin Scalia’s textualism. As Posner and Paul observe, to the extent that it has any content at all “textualism” is going to lead to more conservative policy results more often than not:

One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.

The same is true, of course, of “originalism” — fixing the meaning of broad principles as they were most commonly understood centuries ago is inherently reactionary. This would be true even if these theories always constrained judges, which as Posner observes at considerable length, they do not. Law office history is not history at all:

According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.

Incidentally, McConnell’s main claim to fame was his attempt to pretty up originalism by asserting that Brown v. Board was consistent with the original understanding of the 14th Amendment. As Michael Klarman — unlike McConnell an actual historian — observed at some length, to the extent that originalism has any content at all this is plainly false.

Once you’re done with this, see Posner on why an “apolitical” Supreme Court justice is a contradiction in terms. Which is why the other McConnell is ramming a highly partisan nominee through less than a month before the election.

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