There is a long established convention of referring to the Supreme Court in a given era by the name of its Chief Justice. Thus, we have the Marshall Court, the Warren Court, and the Rehnquist Court. But this name is often a misnomer because the Chief was not the most influential member of his Court. Like all other justices, he always has but one vote. Particularly in the modern era, where political scientists can evaluate judges based on ideological scores, the better name for a Court might that of the swing or median Justice. Under this view, we are living currently in the era of the Kennedy Court.
But probably not for much longer. Justice Anthony Kennedy has announced to prospective clerks that he thinking of retiring. Moreover, as I have previously discussed, with rise of partisanship, justices now have every incentive to retire when both the Presidency and the Senate is under the control of the party whose President appointed them. Otherwise the Court may be left short-handed for an indefinite period and they may be replaced by justices of the opposite party when that alignment finally occurs. Kennedy cannot be confident that the Republicans will control the Senate after 2018.
Assuming that, as is likely, Kennedy is replaced by a justice with views like Neil Gorsuch, the Roberts Court will actually become the Roberts Court in more than name, because the Chief Justice will also become the median justice.
The conservative movement in law has changed substantially in the last half century. At the beginning it was a reactionary movement. The core consensus was that the Warren Court has been out of control, acting more like politicians focused on changing society rather like justices following the law. Insofar as conservatives even had a theoretical critique, its essence varied. One was that Court was activist in that it failed to pay sufficient deference to the political branches. A second was that it abandoned the craft of law, generally defined as following precedent or neutral principles that can be derived from precedents and legal process. A third was that the Court had abandoned the principles of the Founding or intent of the Framers. A final was substantive: the Court’s decisions, particularly in the area of criminal justice, were simply too liberal.
Fifty years on, the movement looks completely different in theory, power, and effect. As to theory, public meaning originalism, albeit of different varieties, dominates. While there are disagreements about the degree of deference, if any, owed the political branches, there is a growing consensus that this question is just another one to be answered by originalism. Perhaps the most important unsettled question is the place of precedent in originalism. But the view that precedent should be a generative force in law is no longer widely supported by theorists on the right. And since conservatives are now adherents of originalism, their methods sometimes support liberal results, particularly in the area of criminal justice.
As to power, during the Warren years, only a very few conservative scholars of public law worked in its shadow. Now originalism has many advocates in the academy and outside, and almost all conservative scholars who publish on the theory of constitutionalism are originalists.
Supreme Court observers have expressed surprise and some have voiced criticism that Neil Gorsuch has been so assertive at oral argument and in his opinions so early in his tenure. Most justices have taken some time to decide how to approach this very important job. Justice Stephen Breyer in fact claimed he was “frightened to death” for his first three years.
But Gorsuch’s confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think. Thus, as a formalist and experienced judge Justice Gorsuch was able to act forcefully from day one on the Supreme Court.
In contrast, for non-formalists like Justice Breyer, the work of the Supreme Court is fundamentally different from that of other judges because in many cases justices must act more like pragmatic statesmen rather than formalist jurists.
With the addition of Neil Gorsuch, the Supreme Court once again has two talented originalists. But two is not five, and the record so far has been that originalism’s influence on the Court has been more symbolic than consequential. In other words, the opinions that have been most orthodox in their originalism have not made much difference to America’s political life. That is not of course to criticize these opinions. Originalists should focus on reasoning, not results. But the absence of more consequential opinions does suggest that Court is not yet an originalist Court.
Originalism can be symbolic in several ways. First, a jurisprudence of a provision can become pervasively originalist and yet be largely symbolic if that provision is relatively unimportant. That is probably the case with the Confrontation Clause where Crawford v. Washington and Giles v. California are quintessentially originalist opinions. But while the Confrontation Clause is of course important to some defendants, it does not change crime control or even criminal procedure except at the margin. This kind of symbolism might be termed the “Originalism of Small Things.”
Another form of symbolic originalism is for the Court to make a thorough going originalist decision, but not to follow up on its important implications.
Debates over government practices and processes in the U.S., like the Senate’s filibuster, typically come amidst specific disputes, such as Gorsuch’s confirmation. As a result, support or opposition to those practices or processes typically depend on whose ox is getting gored in the particular debate. Republicans last week eliminated the filibuster for Supreme Court nominees, Democrats opposed it. Democrats eliminated the filibuster for lower-court nominees and executive officers in 2013, Republicans opposed it. Given the taboo has been violated in these debates, and voters responded with little more than a yawn, I wouldn’t bet on the filibuster’s long-term continuation for ordinary legislation.
There’ll be some differences with its elimination, but I expect the overall effect will be a wash.
The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves. And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.
The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term. The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy.
Between the breathless whispers that Judge Neil Gorsuch intends to impose either medieval Catholicism or, worse, Oxford sensibilities from the bench through the mechanism of natural law and the fear that he might otherwise glide into the legal positivism of which Justice Scalia was unreasonably accused lies another possibility: The Constitution can neither be interpreted through natural law nor reduced to positive law. It is more profitably understood as fundamental law.
Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.
In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his opening statement, he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology. How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service” continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.
Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.
As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.
The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.