My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions. Originalism has an extremely powerful rhetorical appeal. Most people regard the original meaning of the Constitution as the real Constitution. Therefore, when someone seeks to depart from that, they are at a disadvantage.
There are a variety of moves that nonoriginalists have used to deflect this attack. One is to bring up something of a red herring. They interpret originalism as reflecting merely the expected applications of the framers — the specific applications of the constitutional clauses that the framers expected to occur — and then argue that those expected applications are not the Constitution.
But obviously this deflection is insufficient. It does nothing to address the more plausible types of originalism, such as original public meaning, that go beyond the expected applications.
Nonoriginalists also have their rhetorical advantages. One of them is the type of argument that I discussed in the earlier post — appeals to how the Supreme Court justice will be viewed in the future. This appeal is similar to an appeal simply to the perceived desirability of an interpretation. Nonoriginalists can criticize the originalist for interpreting the Constitution in some way that is viewed as normatively undesirable. Since people care about the desirability of constitutional interpretations, this will often be a very potent argument.
The main way around this is to make a convincing case that the Constitution requires the result. If the justice can show that it is not his choice, but the Constitution’s, then this can free him of responsibility. Sometimes people are reluctant to believe a justice’s claim that the Constitution made him do it. If a justice can explain that he does not favor the law that he is upholding – that he wishes he could strike it down – this will often go a long way towards persuading people that it is not his choice, but the Constitution’s.
My sense is that the originalist justices could use this strategy more often than they do. Of course, this move will not be available if the justice favors the law or has no strong views. But in cases where the justice opposes the law, it would be worth pointing that out in the the opinion more forcefully.