Tag Archives: supreme court

Everyone’s An Originalist

It’s no secret to the loyal reader that I’m somewhat of a fan of Supreme Court Justice Antonin Scalia who died this weekend. I’ll ignore political implications of this death which began far too quickly after it was announced. I won’t even talk much about the man himself, since others are doing that plenty and I hadn’t met him yet. (We have a mutual friend who was willing to introduce me but we never got around to it. Carpe diem, people.) I’ll say only that he was just imperfect enough to open himself up to some justifiable criticism, though no more so than anyone else I know.

Instead, I’ll spend a few paragraphs defending Scalia’s legacy, the interpretive method known as originalism. You may have seen sarcastic mentions of it on your social media feeds that mocked Scalia for allegedly being stuck in the 18th century.  My point is that originalism is the way everyone interprets everything, and constitutional interpretation should not be different; in fact, there are good reasons to make that presumption even stronger.

The Marriage Analogy

Imagine you’ve been married for 20, 25, 30 years, and your spouse comes to you and says, “I know we’ve been together for a long time, but I’m going to have an affair. When I said I’d be faithful, that was a long time ago. We’re getting bored with each other, and infidelity is very common now, so it would really be better if I could have an affair.” You probably wouldn’t appreciate their living relationshipism. You’d feel betrayed. You wouldn’t care how long ago the agreement was formed or infidelity was really on the rise. You’d interpret your agreement the way it was when you made it. If your spouse wanted a change, he/she should have come to you. Couples make adjustments to stay happy (up to and including sanctioned straying, pop culture tells me), so your spouse had that option available if something needed to be changed.

What if your spouse argued that he/she had the right to cheat all along? “Infidelity was always high, and common in many cultures. You really could never have had an expectation I’d be faithful. It just happens to have come up now.” I imagine you’d fight back on that, too. You’d point to your wedding vows, for example; you’d point to the cliched bachelor/ette party comments about your last sexual partner ever; you’d point to what all your friends and family expected your marriage to be.

Don’t look now, but you’ve just engaged in originalism, which just means that an agreement means what it means until it’s properly changed through whatever mechanism changes it. If your marriage arrangement isn’t working, the expectation is to jointly change it by mutual agreement; if a constitutional arrangement isn’t working, the proper path is to amend the constitution. I contend that most people would be irate if their friends or business partners engaged in constant unilateral re-writing of prior agreements. (Being homo hypocritus, of course, we’d keep doing it, because it’s different when we do things.)

The Real Complaint About Originalism

What’s bothering most people about Nino’s originalism (and mine, I guess) is that it isn’t giving them what they want easily, especially the socially liberal chattering classes. The constitution (and its amendments), written when it was, was not friendly to women, or minorities, or the poor. The fact that we wish it weren’t so doesn’t change the language and the original understanding of it. It’s up to us to change the law in a way that reflects present-day public will, to the extent such a thing exists. People who complain about originalist interpretations are mostly mad that they can’t convince enough of their fellow citizens to make the necessary changes.

Unfortunately for the rule of law, it’s become far easier to get the Supreme Court to declare that something has always been constitutionally required (such as gay marriage) than to convince enough states to permit it. The same is true of almost any contentious issue, where the initial Supreme Court ruling is unlikely to be overturned by majority rule in the near term. As a result, we’ve turned the court into a vehicle for expressing that the law or policy should be rather than what it is.

The Unfairness of Non-Originalist Interpretation

The death penalty provides a good example of why using the court as a policy tool is ultimately unjust. The death penalty is clearly contemplated in the constitution and has been widely used since 1787. There is no doubt that it was a constitutional penalty when the constitution was adopted. There are, however, judges – like Justice Breyer on the Supreme Court – who believe the death penalty to have become cruel and unusual punishment in violation of the Eight Amendment.

If you believe that the death penalty should be abolished – a position to which I’m sympathetic – then you can follow the example of Nebraska, whose Republican legislature recently abolished the penalty. What you should not do is declare that yesterday the death penalty was constitutional but today it’s not.* That means that two twin brothers committing the same crime a day apart could be punished differently, all without a democratically accountable process by which the people (nominally) decide to change the consequences of a crime. This is, in simple terms, unjust.

*One exception that is often made here is that sometimes the facts on the ground change significantly. I’m not sure how much worse the DEATH penalty could be than we think it is, though, so I’ll ignore that here. A possible application of this rule could be solitary confinement; widely used, but only now are we grasping how destructive it is. If we learn it’s qualitatively different from what we thought it was, then the activity was never knowingly adopted as constitutional, and there may be grounds to interpret the activity as never having been constitutional because of a mistake. This is the sort of loophole that may be stretched beyond all reason, but even I could imagine a fact change so large and severe that I’d be reluctant to wait for the legislative process to catch up to it.

If you’ve read this far, you may have forgotten that this post started with the death of Justice Scalia. The above, in a nutshell, is a simplified and somewhat idealized version of his judicial philosophy. You have probably already seen simplifications and distortions of it online. I hope this explained a little just how common-sensical and intuitive the idea really is.

Commentary on SCOTUS

I’ve mostly ignored the commentary on the Supreme Court’s blockbuster cases the past couple of days (most of it is not interesting, legally speaking) but I suppose I should offer my thoughts, having followed the court more intensely than ever before this term. (I’m serious. My pump-up mix contains the Scalia dissent from Maryland v. King.) I’ll comment in general, though you’ll see a theme.

King v. Burwell (The Obamacare subsidies case)

The outcome was predictable, of course, and I can’t get too worked up about the result. A few million people get subsidies, which is a rounding error for the bloated federal budget, so whatever; it’s not like forcing the Democrats back to the legislative table would have taken us very far. (Yay politics.)

The real disaster, and there’s really no other way to phrase this, is the precedent this sets for the future. It encourages sloppy legislation at the very least, with the understanding that courts will give you a break if you get it wrong. It will probably encourage intentionally vague drafting with the hope that a court will give you more than you could have gotten in the political process. (Lawyers will sometimes leave a contractual provision vague for the same reason. …I hear.) This has been a trend in legislative interpretation for decades, with doctrines of “saving constructions” and “constitutional avoidance” going out of their way to invalidate or otherwise restrict bad laws. (Bond v. US and Canning v. NLRB are recent examples of this.)

Also, on a personal note, I hate the idea that “established by the State” can also refer to things “not established by the State.” Words have meanings. Please stick with them.

Obergefell v. Hodges (The Same Sex Marriage case)

This wasn’t exactly a stunner, since Kennedy has been telegraphing his desire to be the one to address this issue, but I admit I was surprised by the reasoning of his majority opinion. It’s perhaps the least useful opinion written in the last few years, worse than this year’s Elonis v. US (which passed up an easy chance to pick a mental state requirement rather than saying “the lowest one isn’t it.”). While he can count on being quoted at weddings for the next few decades, the opinion offers very little in terms of legal reasoning that can be translated to any other context. Equivocating between Substantive Due Process and the Equal Protection Clause, Kennedy ultimately concludes that the constitution requires all states and territories to recognize same sex marriages mostly because it would be a good thing to do.

In many ways, Obergefell could be similar to Brown v. Board of Education, another important opinion that suffers from the same legal infirmities but has obviously had a tremendous legal impact. (I would argue, however, that all the hard work for Brown had been done by Justice Harlan’s famous dissent in Plessy v. Ferguson, as tremendous a piece of legal writing as you’ll ever see.)

The four dissents don’t offer much in terms of rebuttal, although I imagine they didn’t really bother to. Thomas and Alito do provide a decent constitutional analysis that makes me think this should have gone the other way, but this was not anyone’s finest writing hour.

I should say, I’m very happy about the outcome, and I definitely think it’s the correct social policy. I’ve voted in favor of SSM in all elections I’ve participated in, and I would have liked to see it go national this way, rather than through a very dodgy legal ruling that could undermine the rule of law and trust in the court as an institution. That said, if I were denied a right, I know I couldn’t care less about those other things if the court ruled my way. So this decision is a good thing.

That said, be worried. Burwell and Obergefell have made the Supreme Court more important than ever. Control of the court will become essential, and it’ll make presidential and senate politics even worse than it is now. (Yes, it’s possible.) It opens the doors to constitutional rulings on religious freedom or gun laws, for example, that should have been left to the states and people. In fact, some early analyses wonder if the court’s reasoning in Obergefell translates to the rights under the Second Amendment. Watch for that fight in the near future.

I’ll skip the other decisions of this term, although there have been some interesting ones, but I will note that the court has not impressed with clarity this year. I’d imagine the early October cases next year being tamer than usual to offset the acrimony of the last few weeks.

Anthony Kennedy & Gay Marriage (A Conspiracy Theory)

After the Supreme Court failed to grant cert to any appeals of lower court gay marriage rulings, Justice Kennedy added a twist:

A day after a federal appeals court struck down same-sex marriage bans in Idaho and in Nevada, implementation of the decision in Idaho was temporarily blocked on Wednesday by Justice Anthony M. Kennedy of the Supreme Court.

Justice Kennedy’s order came shortly after Idaho filed a request to the Supreme Court for an immediate stay of the appeals court ruling. The ruling was the latest in a nearly unbroken string of courtroom victories for gay couples. Justice Kennedy asked the proponents of same-sex marriage to file a response by Thursday afternoon.

These requests are pretty routine and as far as I know they haven’t been granted in any other cases except this one in the 9th Circuit by Justice Kennedy. Why might that be?

My guess, and this is based solely from a little bit of court watching, is that Kennedy wants to force the issue of gay marriage to the Supreme Court for a final decision. It’s telling that the gay marriage cases couldn’t gather four votes from either the conservative or the liberal justices. This tells us that neither side thinks it can win. Perhaps the conservatives remember Kennedy siding with gay marriage in Windsor. Perhaps the liberals see no need to take the cases and are content to wait until most, if not all, district courts have made gay marriage the norm. With gay marriage reaching public acceptance in a hurry, there’s little to be gained for them by giving conservatives a chance to set back the effort.

Kennedy is the swing vote here, and he might want to cast that vote and write that opinion while that’s the case. By blocking the implementation, he’s putting a lot of people – California is in the 9th Circuit – on hold while the appeals are resolved. If this drags on, it may spur the court’s liberals to grant cert and handle this once and for all.

Just an idea, of course.