Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject. The text of the Fourth Amendment is filled with significant interpretive questions.
It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around or oppose policies or nominees of the sitting President, simply by virtue of his party. And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.
But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.
The Democratic judicial philosophy has also become clearer. At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.
The confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.
Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.
More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body. Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.
I am a strong opponent of Obamacare. But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed. I felt much less politically invested in the issue and could more easily view it in an impartial manner.
Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case. Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion. But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin.
Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think Black is one of the best justices who served during the middle of the 20th century.
Sunstein likes Black’s generally liberal decisions, but he is critical of Black’s methodology of textualism and originalism. Sunstein begins with Black’s textualism, writing:
Too much of the time, Black claimed that the text of the Constitution required a particular result, when it did nothing of the kind. He famously defended his free speech absolutism by noting that the First Amendment “provides, in simple words, that ‘Congress shall make no law … abridging the freedom of speech, or of the press.’ I read ‘no law … abridging’ to mean no law abridging.”
But Sunstein rightly points out that the key question is what “freedom of speech” means and many laws that interfere with speech may not interfere with freedom of speech.
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 (link no longer available). 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.
I’m very grateful for Mike Ramsey’s forceful response at The Originalism Blog to my earlier post on the (alleged, by me) conflict between modern-day textualism-originalism and John Marshall’s jurisprudence, on the subject of preemption and beyond. I prolong this dispute among friends because I think it matters not only or even primarily for constitutional theorists but for urgent practical reasons. Like, the fate of our economy and the Supreme Court’s ability to get cases right on principle, rather than sheer fortuity. This post deals with general jurisprudence; the next, with preemption.