Public Choice Challenges to Originalism

In my last post, I looked at the influence of public choice on originalism, which I discuss in a recent paper.  Here I suggest that originalism also faces challenges from public choice that it needs to address. Here are four of them:

How is Originalism Self-sustaining?  Public choice originalism shows why one needs to enforce constitutional provisions according to their original meaning to prevent legislative or even popular majorities from undermining the supermajoritarian framework. But why will judges follow originalism, when the supermajoritarian framework of the Constitution makes it very difficult for people to overrule their decisions through a constitutional amendment? Recent work by rational choice political scientists has focused on the general question of how a constitution can be self-enforcing.

One possible answer is that justices will be disciplined by a culture of originalism. As Richard Posner notes, an important part of judicial satisfaction comes from feeling that they have played the game by the rules. If the rules are understood to be originalist, that understanding provides substantial discipline.  One observation about this solution is that it makes the success of originalism ultimately dependent on cultural capital–in this case that of the legal culture.  That fact is not necessarily surprising. Many other important social institutions, like the market economy itself, have been thought dependent on culture.

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Posner’s Tyranny of Expertise

Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.

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Business and Judicial Bias

At the volokhconspiracy, Jonathan Adler takes shots at a law review study by Lee Epstein, William Landes, and Richard Posner, purporting to document the Roberts Court’s unprecedented pro-business bias. The study was reported in a New York Times piece by Adam Liptak. After noting significant methodological flaws in the study (which, admittedly, I haven’t read yet but which seems just as shoddy as the “judicial behavior” literature in general), Adler comments:

Quantitative studies of the Supreme Court’s behavior can be illuminating, but they only go so far, and they have a difficult time accounting for the actual impact of the Court’s decisions.  Not all cases are created equal.  A single case, such as Massachusetts v. EPA (or Wyeth v. Levine, to note another significant business loss in the Roberts Court), may be more significant than a half-dozen cases in which differently aligned interests prevailed.  Ultimately, if one wants to know whether the Court is more or less friendly to business (or any other interest) one should look at the doctrinal result of the Court’s decisions.

My sentiment exactly. Let me add this:

It would not occur to the quant geniuses to code civil rights decisions as “pro-“ or “anti-black,” or civil liberties cases (e.g., search and seizure, death penalty, Confrontation Clause) as “pro-“ or “anti-criminal (killer, child molester).” There, the bean counters go to the norm, not the constituency. When it comes to “business,” they count and write as if there were no norm.

On that theory, every antitrust case that’s won by a defendant counts as “pro-business.” Never mind that under modern antitrust law, business can’t win unless it shows that its practices were pro-consumer, or at least not detrimental to consumer welfare. No one would suspect Lee Epstein of recognizing the difficulty, but Richard Posner?

Or consider such constitutional norms as the Privileges and Immunities Clause (Art. IV Sec. 2) or the Contract Clause (Art. I Sec. 10): they protect commerce and private orderings, presumably for the good of all. But they’ll be enforced mostly by economic actors. In the quant world, the principles fall away, and every successful enforcement action—if such actions could be brought, which by and large they can’t—would count as simply “pro-business.”

I am entirely open to the suggestion that the Supreme Court often does look to constituencies rather than norms. For my part, I can’t explain the Court-created edifice of sex discrimination (including abortion) any other way. Similarly, it’s plausible to argue that in commercial cases, the contemporary Court is looking away from constitutional norms (which it is no longer willing to enforce) and towards hand-crafted doctrines to serve to protect commercial actors. (This had better be plausible; it happens to be my view. See The Upside-Down Constitution.)  All that, though, requires a careful examination of empirics and doctrine. To simply assume effectively norm-free constituency orientation in one context (but not others) is a category error in service of a preconceived result.

The Administrative State, Once More: What’s Law But a Second-Hand Devotion?

They’re on to me. I’m “disgruntled” with my profession (Administrative Law), says Stephen Bainbridge; the whole field is a fraud.

Sort of—but not quite. In coming months I’ll devote a number of posts to the pathologies of our administrative law. To avoid further misunderstanding and to keep me gainfully employed, let’s take this from the top.

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Richard Posner, Out to Lunch with Eliot Spitzer

Graciously descending from the heights of the Seventh Circuit bench and his post as King of every intellectual compost heap, Judge Richard Posner granted an interview to viewpoint, hosted by Eliot Spitzer. For those who have followed the judge’s pronouncements over the past few years, there is not much new here. But you still have to see it to believe it, or my comments below. Keep controlled substances within reach: the content would make the Good Humor man go postal, and the wanton self-destruction of a good man is never a pleasant sight.

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Posner on Scalia and Garner’s Reading Law I: Textualism and Conservatism

Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book is peculiar.  There is no way to see it as other than a hatchet job – an attempt to attack the book, without balance, from every possible direction.  As with most hatchet jobs, it reflects as poorly on its author as on its target.

I say this with some regret as I believe that Richard Posner is a genius – a genius in the sense that he is capable of doing what it is hard to imagine a human being doing.  His incredible output at a high quality is just amazing.  It is not that any bit of it is so dazzling, although it is quite good; it is the incredible quantity of it at that high level.  But, of course, that he is a genius does not make him right.  Nor, as is most applicable in this case, does it mean that he does not let his passions get the better of him.

I am not sure how much to blog about this.  But as I read through the review, so much is wrong that I thought I would just start discussing it.  We will see how many posts I can write about it before tiring.  For a more systematic criticism of Posner by someone (unlike me) who has read the Scalia and Garner book, see Ed Whelan’s post.  I should note that I don’t agree with Scalia about everything and Posner does make some good points.  But the weaknesses of his review are pretty glaring.

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Judge Posner’s Goofiness

Recently, Judge Richard Posner said, “I’ve become less conservative since the Republican Party started becoming goofy.”  A very peculiar claim in a couple of ways.  I had the same reaction to this that David Bernstein had.  Will Posner respond to Bernstein?  Judge Posner is probably a genius, but what possibly could he say?