The Unjudiciousness of Originalism – A Cover for Reactionary Bias from the Bench

With the impending confirmation of Amy Coney Barrett, another self-described “originalist” to the Supreme Court, many of us, all too belatedly, I confess, are trying to get a clear vision of what this judicial philosophy really is all about. Most famously championed by the late Supreme Court justice Antonin Scalia, whom Barrett characterizes as her mentor, originalism is also claimed to be the legal philosophy of Supreme Court justices Clarence Thomas, Neil Gorsuch, Samuel Alito, John Roberts, and Brett Kavanaugh. To qualify this list, Justice Roberts admits only to a softer version of the philosophy, one which allows for consideration of subsequent reflection on a matter, while Kavanaugh has confessed only to being a “textualist”, while being widely considered by others to being in the originalism fold.

Originalism as an explicit judicial philosophy is often traced back to Judge Robert Bork, who in the early seventies introduced it as a set of “neutral principles”. Since then, originalism is almost always associated with contemporary political conservative ideology and especially with members and supporters of the Federalist Society, which was formed by conservatives and libertarians in 1982 to promote originalism and associated legal philosophies. In recent years, more and more judges of this ideological bent have been appointed to the federal bench, and it is incumbent on us to come to grips with what it is all about.

For too long, judges have taken cover behind this philosophy and shielded themselves from the discontent and suspicion of those they purportedly serve on the insinuated grounds that originalism is a legal theory and as such its proper evaluation is a matter of expert professional judgment by those in the field, beyond the ken of the people at large. But in fact, the moral evaluation of a legal philosophy is not a matter of expertise, since moral evaluation is always something to be carried out at large and in the public forum. Just as a doctor’s expertise does not range over the decision whether someone should have surgery or not, but over advising the patient in making such a decision, so too, it is we, the people who ultimately must evaluate whether originalism constitutes a viable judicial philosophy, or whether it should be condemned as a cloak for political bias.

There are various versions of originalism, but the one made famous by Justice Scalia and most espoused now is Original Public Meaning. As Judge Barrett counts him proudly as her mentor, especially regarding originalism, it is safe to assume that she subscribes largely to the same version as he, especially since he derided all other versions but this one. Although we should not assume she accepts as true everything Scalia ever said or every decision he ever made, surely it is safe to say she should subscribe to Scalia’s general characterization of the theory of Original Public Meaning. According to her own loyal depiction stated to Congress recently, judges should read articles of the Constitution and the Bill of Rights as statutes according to how they would have been understood by the reasonable and well-informed reader at the time of its ratification, “placing out of mind knowledge we [now] have which an earlier age did not… [without being] updated according to [the judge’s own] policy preferences.” Scalia himself had described this process as one of “putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day (Emphasis mine)”.

Article 10 of the United Nations’ Universal Declaration of Human Rights (1948) states that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him (emphasis mine). As ratifiers of the Declaration as well as the principle agency of the formation of the United Nations in general, the people of the United States of America know that we have the obligation to live up to the ideal of an impartial judiciary, which implies a judiciary does its best to be and remain free of prejudice, as well as avoiding all appearance of such. But the prevailing version of originalism now widespread in our federal judiciary - especially at the highest levels - dictates according to the words of its most famous purveyor that we deny the terms of the Article just stated. Instead of being impartial, we are to put on the prejudices of the past and judge at least in part according to them; instead of being independent, we are to put on the loyalties of the past and judge, at least in part, according to them.

Moreover, it is properly expected that a judge be judicious. To be judicious entails to be open- minded; to be open-minded implies metaphorically to be open-eyed. But the originalism of which we now speak requires judges to close their eyes to all of the moral progress made by humanity from the time a Constitutional statute at issue was ratified to the present. To be sure, it is said that justice is blind; but by this is intended that it is blind to prejudice and corrupting loyalties, with its eyes wide open to moral enlightenment. The Original Public Meaning theory requires of judges the opposite: that it be blind to moral enlightenment while embracing past prejudices and loyalties.

It may be that given the opportunity, Judge Barrett would respond to this by disavowing that the originalism to which she subscribes requires past prejudices and loyalties by reference to the standard of a reasonable public reading from the past, where reasonability would filter out prejudice and corrupting loyalties. While we all can easily concede this point, it changes the theory considerably, since now we have to come to grips with what it is to be a reasonable reader. If we attempt an originalist answer to this question, we get a reductio ad absurdam: for two hundred years ago allowing women to vote was widely considered unreasonable. No in order for reasonability to effectively filter our prejudice and the like, it would have to be defined as a moral ideal. Now, moral ideals are perennial notions the grasping of which is progressive. Progressive moral enlightenment, in fact, is the result of this process; which is something originalism instructs us to ignore. So while allowing this innovation into the definition of originalism may improve it, it turns it into something that Scalia excluded from his own descriptions.

The originalism of Scalia and Barrett is thus conflicted; it is supposed somehow to be “neutral”, as described by its semi-official founder, Bork. Yet, it methodologically aligns itself with past thought known to have been afflicted with biases and blind spots we have since largely overcome. How, can justice be the result of such an apparently contradictory ideology?

Justice Scalia often characterized his originalism as the only democratic way to judge, arguing that all other ways amounted to a denial of the separation of powers required for democracy to work. While in this comment he was, of course, referring to the usurpation by the judiciary of powers properly granted to the legislative and executive branches, it certainly implies acceptance of a wider principle that democratic processes should be protected by interference from non- democratic forces. But he seems to show no concern at all for this larger principle in one of his shadiest judgments, Citizens United v Federal Elections Committee (2010) where he ruled in favor of corporate money to dominate the sacred and most fundamental of democratic values: speech. Now, corporations that are defined and brought into existence for the purpose of economic competition by that factor fact will predictably spend their money for that same purpose. Any investment made in the political process is to be understand as an investment in their economic success, no less than a football coach’s decision on what play to call is based on maximizing his team’s chance to win. Thus, such corporations in spending money on “political speech” are presumably not doing so to promote the cause of political goodness or truth, the way an individual human being’s contributions ought be presumed to do. Therefore, corporate motives for investing in politics are justifiably seen as non-democratic forces. It is hypocritical to be so concerned about the balancing of political powers for the sake of preserving democracy while ignoring the arguably greater dangers of the economic corruption of the political process.

It seems ironic that a judge whose main purported concern was preventing judges from overstepping their authority would himself take such large steps himself, first nullifying what research has shown would have been a victory for Gore in 2000, handing it to Bush instead by refusing to countenance the much more moderate remedy of a statewide recount in Florida; then effectively extending the range of economic interference in the political process by corporate interests, further blurring an already blurry boundary protecting the integrity of democratic processes. All in the name of a judicial philosophy ostensibly aimed at judicial restraint.

In spite of all the points just made, I can imagine someone making an innocent attempt to maintain some viable theory of Original Public Meaning by making the appropriate adjustments here and there. I think that across the country, some judges may be doing this. The success of doing this should be marked by a fair enough diversity of outcomes on the political spectrum to stand as evidence that this theory genuinely is politically neutral. And yet, what we see is that the originalism movement has produced an overwhelming balance of conservative, even ultraconservative outcomes, especially on key issues. The one case Scalia cited over and over was his decision in favor of flag-burning, which he detested. But this one case does not clear him of prejudice any more than a racist is cleared by having one black friend.

I cannot get over the fact that originalism, though purporting to be neutral, lacks a significant record of outcomes that would not be considered typically conservative. This alone is cause to suspect it as a cover-theory for a political ideology. Its main incubator, the Federal Society, is heftily supported by conservative and libertarian money, including, notoriously, the Koch brothers.

In fact, there are two famous politically progressive proponents of originalism: one a Yale professor of Law and the other a deceased Supreme Court Justice. The latter, Hugo Black, died before the term originated, but is widely accepted as a proto-originalist. At the time the theory he espoused was known as Textualism, a precursor to originalism. Although his legacy is spotted, he is largely accepted as having a progressive record. The former, Akhil Reed Amar, is well- known and at the top of his profession. But the fact is, Dr. Amar is not a judge, and Justice Black has been deceased for almost 50 years. And that’s apparently it. Moreover, the decisions they either made or would support turn out to be different than the ones now being made in the name of originalism.

Perhaps someone might say that we should sooner write off these two cases of liberal originalism as cases of biased thinkers without impugning the bulk of conservative originalists now clogging the courts. But these two men are and were at the top of their fields; Justice Black as a former member of the Ku Klux Klan, in his moral struggles came a long way from his ideological roots. Moral struggle away from bias is a good marker for a man of good judgment. This is something I don’t see at all in Scalia and many other originalist jurists, who seem smug in the positions they take. As for Dr. Amar, he is not a polarizing figure in his field, unlike so many of the conservative practitioners of originalism.

Besides, what counts as conservative in this country is not so much a matter of principle as historical accident. For example, it is considered politically conservative in this country to be a laissez-faire capitalist. But laissez-faire capitalism is internationalist, whereas internationalism is considered liberal in this country. Furthermore, it is pro-immigrant and against heavily guarded borders, both of which are considered liberal positions in this country. Contemporary American conservativism defying as such any cogent conceptual unity and being defined more by the political maneuvering of the moment or age, there is simply no way for a judicial theory to just accidentally and innocently coincide with the “conservative” side of so many legal questions.

I have to hold it against originalism as practiced today that is has done nothing to avoid the appearance that it is just a respectable cover for judges to make reactionary decisions overturning precedents for the sake of conservative causes. I hope that whatever there is that is good to this movement will strive mightily to free itself from this crippling perception and turn the philosophy toward a genuinely neutral judicial methodology. To do this it will have to shed its acquiescence in the prejudices of the past and open up to the process of moral enlightenment of human history as a whole. Rather than skeptically ignore the moral progress of humankind as possibly infected with bias, we expect judges to be up to the task of determining and confronting each case of biased thinking when they see it and be transparently accountable for their reasoning regarding it.

Moral reasons are always relevant to sound legal judgment; they are the lights by which read the law, and we need them all to be on when we read it.