Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives

Brian Tamanaha

This politically conservative response (“originalism” or “textualism-originalism”)—which under different conditions could be a liberal response but is more congenial to conservatives because of its evocation of an era more culturally conservative than today—illustrates a more general tendency of judges to reach backward for the grounds of their decision. By doing so they can if challenged claim to be employing a different methodology that involves deriving conclusions from premises by logical operations as distinct from basing action on a comparison of the social or political consequences of different possible outcomes. But the backward orientation actually enlarges a judge’s legislative scope, and not only by concealing that he is legislating. A judge or Justice who is out of step with current precedents reaches back to some earlier body of case law (or constitutional text) that he can describe as the bedrock, the authentic Ur text that should guide decision. And the older the bedrock, the greater the scope for manipulation of meaning in the name of historical reconstruction or intellectual archeology….

The originalist’s pretense that [one can derive authoritative interpretations applicable to present disputes in this manner] makes originalism an example of bad faith in Sartre’s sense—bad faith as a denial of freedom to choose, and so the shirking of personal responsibility...[Justice Breyer also gets some criticism here].

Sartrean bad faith need not be conscious….He considers his decisions legitimate, concludes they must therefore be legalist, and constructs a legalist rationale that convinces him that his decision was not the product of his personal ideology.