Balkinization  

Wednesday, February 10, 2010

Justice Thomas On The Place of Originalism

Brian Tamanaha

Justice Thomas recently, in an almost off-handed fashion, made several important observations:
Speaking...at the University of Florida law school, Thomas said the Court's decisions should be questioned, but he is bothered by rhetoric suggesting its justices have ulterior motives, the Associated Press reports.
He is correct to object that we (legal types) are too quick to suspect the motives of Supreme Court justices. This skeptical tendency is corrosive of law, unwarranted and unfair (except for the occasional one-off like Bush v. Gore). The sitting justices, by all indications, are people with integrity who sincerely render decisions in accordance with their good faith reading of the law.

Why, then, do the justices so often decide along what appears to be political lines?
"There are different approaches, because we start with different assumptions. Or we look at things differently," he reportedly said. "And I think law school should encourage you that these differences are acceptable in our legal system. And in the end, it is what strengthens and informs our legal system."
Again Justice Thomas is correct, making three distinct points of significance.

First, he acknowledged that justices have different starting assumptions--which includes having different views of the proper modes of constitutional and statutory interpretation (originalist, pragmatist, minimalist, etc.). Skeptics suggest that these jurisprudential views merely serve to cover political decision making, but a better explanation of the connection is that their political views incline them toward adopting jurisprudential theories congenial to their views. This does not amount to the same thing (politics at bottom!) because the jurisprudential theory has its own implications and requirements that can and do regularly point away from a justice's political preferences.

Second, Justice Thomas acknowledged that justices see the world differently--each from a different perspective--which subtly colors just about everything, from how they perceive the facts, to the interests at stake, to the purposes and consequences of the laws at issue, to the applicable theory of legal interpretation, etc. These different perspectives on the world will naturally, inevitably, generate different legal decisions (though in a significant proportion of cases they will nonetheless agree on the law).

Lastly, he is correct to note that the above two sources of differences among the justices are normal (indeed they cannot be eliminated), and furthermore, they are beneficial to the development of law--and he urged that law students should be taught this in law school. (A good place to start is Beyond the Formalist-Realist Divide.)

I would add to Thomas's recommendation that U.S. Senators should also be taught this lesson--in the hope that they might stop intimidating judicial nominees into proclaiming (dishonestly) that their personal views will have absolutely no impact on their judicial decisions (they know quite well there is an indirect impact, at least).

It is especially interesting that Justice Thomas, who espouses a strict (extreme) version of originalism, would make these observations. He is genuinely taken with the conviction that originalism is the correct theory of constitutional interpretation--but his observations acknowledge that other justices are genuinely and properly (legitimately) taken with their own views of the correct approach.

His observations also imply that even in his own view, perhaps surprisingly, it would not be good for the law if all the justices were persuaded to adopt his strict originalism (shudder at the thought). Unanimity among justices on the correct jurisprudential or interpretive theory would be bad--even with a sound theory--because the interplay of different assumptions and perspectives among the justices is healthy for the development of law. But even if the justices came to agree upon a single theory of interpretation, his comments suggest that they would still decide differently owing to differences in their perspectives, which will influence how this theory plays out. I'm not sure that is what Thomas meant (I may be reading too much into his statements), but these are the implications of his observations.





Comments:

More with a link to his Q&A with students.
 

Justice Thomas' views are not that dissimilar to the hermeneutical circle as described by Hans Georg Gadamer in his "Truth and Method." But discussions on originalism, in its varying versions and applications, can be dizzying. As I noted on another blog with respect to a CA conference on originalism, I think of a variation of Mel Brooks' 2000 year old man schtick with a 190 year old man at the conference to comment upon the public understanding of the 14th Amendment back then in contrast to the presenters' understanding of the then public understanding. If Mel served in this role, I could hear him say: "OY VEY!"
 

It is interesting to compare Scalia and Thomas in this regard. Scalia is certain his original meaning jurisprudence is correct and believes that other justices are erring when they do not follow it. In contrast, it appears that Thomas defensively just wants to be have his approach accepted.
 

"his observations acknowledge that other justices are genuinely and properly (legitimately) taken with their own views of the correct approach."

They seem to acknowledge that other justices are genuinely taken with their own views of the correct approach, but that point doesn't do a whole lot of work. One need not concede the validity, correctness, or wisdom of a given approach in order to say that someone genuinely believes it.

"His observations also imply that even in his own view, perhaps surprisingly, it would not be good for the law if all the justices were persuaded to adopt his strict originalism"

That does seem to read too much into the comment. I would read him to say that lawyers would be better lawyers if they better understood the different perspectives of judges, and better lawyers strengthen our legal system. The comment seems a distant relative of the suggestion in Scalia's book that lawyers should come armed with the legislative history. Doesn't mean he's going to use it, or that he concedes that it should be used; it's just an acknowledgment that some judges do and lawyers should have the full toolbox available for their clients.
 

Justice Thomas' comments were made quite recently. Let's consider the various versions of originalism to such comments:

1. What did Thomas intend with his comments?
2. What is the public meaning of his comments?
3. What is the public understanding of his comments?
4. What is the [fill in a newer version of originalism] of his comments?

Perhaps Justice Thomas may respond to the various takes of others on his comments in anticipation of upcoming articles on originalism.
 

A lawyer starts with a client which means he starts with a desired outcome. He then works back from that to find evidence and precedent to support his case. When he has enough (for example, as much as will fit in a Supreme Court brief) he stops. Since this process never reaches the core reality at the bottom of the case, two different parties come to court to argue two different cases about the same event.

This is not helped when nearly everyone who comments about a case describes it not in the terms that the decision used, but rather in terms of the issues they would rather have debated. In Boumediene the Court ruled that Habeas is a power of the court that Congress cannot restrict by statute, but people ignore that and talk about the detainees having achieved a "right to Habeas". The insistence on taking a decision that says nothing about rights and turning it into such a claim repeats in Citizen's United. After the decision a broad number of comments attack an imaginary decision to grant "personal rights to an artificial person". Yet the decision says nothing about human and inhuman rights. The decision, as the actual text of the First Amendment, prohibits Government from interfering with the freedom of speech without reference to the right or lack or rights of the speaker. Repeated references to the "free marketplace of ideas" and a closing quote ("The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”) make it clear that there is also a human right to hear the free exchange of ideas from various sources and my right to read or view may be as important as your right to speak. If we are all trying to solve a problem, and various suggestions are submitted from various sources, do we reject a contribution that provides what is obviously the right solution because it was submitted by a corporation and corporations do not have human rights to speak?

Constitutional norms, and their interpretation, allow the speaker to stop when he hits what he believes to be a core principle that cannot be compromised. Sometimes those principles are just wrong and sometimes they don't apply one you view the case in its entirety.

The Supreme Court is made up of people who are smarter than most of us. They are better at seeing the whole picture and considering all the issues. However, when reading an opinion and its dissent, it is useful to ask, "Are these really two different opinions about the same case from two different legal or political points of view, or are these opinions about two different cases that the Justices have created from the facts and issues of the original case.
 

"Skeptics suggest that these jurisprudential views merely serve to cover political decision making, but a better explanation of the connection is that their political views incline them toward adopting jurisprudential theories congenial to their views. This does not amount to the same thing (politics at bottom!) because the jurisprudential theory has its own implications and requirements that can and do regularly point away from a justice's political preferences. "

It's really cute that you believe that. The skeptics are, of course, right, and they are the same thing. In theory it would be possible that they're not the same thing, but empirical reality just doesn't support the notion. There is enough leeway in any jurisprudential view to allow significant rationalization to align a Justices decisions with his political preferences, and Justices are experts at framing a case narrowly so as to justify a departure from their professed jurisprudential views. When a Supreme Court Justice chooses to decide a case against his political instinct, it is inevitably on a matter that is not central to that Justice's political views, and the departure itself is inevitably a calculated political act, intended to announce the Justice's "integrity" to the world.

None of which is to say that there's no legitimacy to judicial interpretation of the law, but the notion that judicial interpretation of the law isn't at its heart a political act is a myth for consumption by the rubes.

Judicial decisions are political, but what matters is that the politics of sitting judges are insulated from the public political whims of the moment. Judicial interpretation of the law is useful as a stabilizing and unifying factor that allows people to have reasonable expectations about how the law will be enforced, and it is occasionally useful as a check on executive and legislative overreach, but it is in no way not a political act.
 

Of course it's a political act. Honest interpretation couldn't have gotten you Wickard v Filburn, for instance. And once the New Deal had settled in for a while, the Republicans got as fond of usurped power as the Democrats, for all that they wanted to use it differently.

Presidents don't nominate, and the Senate won't confirm, anyone suspected of simply upholding the plain text of the law without fear or favor. A willingness to put a thumb on the scale is the one essential job qualification.

This is not to say that it's impossible for a Justice to decide without politics. It's just impossible for somebody who'd decide without politics to become a Justice.
 

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