Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Can Originalists Promote Originalism through Strategic Judging?
Over at Law and Liberty, Steve Smith wonders how it might be possible to give nonoriginalist judges, especially on the left, incentives to decide more cases according to originalism. His solution: "reactivism." After the Supreme Court decides a non-originalist case like Roe v. Wade, or Obergefell v. Hodges, originalist judges should vote strategically to limit its practical effect in later cases, in order to achieve results closer to what would have happened if the Court had decided the case correctly according to original meaning. Originalist judges should do this even if the distinctions they draw to limit the earlier decision aren't the most principled or logical ones. Knowing this, nonoriginalist judges will have incentives to stop producing so many nonoriginalist decisions.
There are three problems with this strategy. First of all, from the perspective of many liberal nonoriginalists, this is what many judges already do whenever they don't like a decision. As liberals see it, conservatives (not just originalist conservatives) have been trying to chip away at liberal precedents for years using distinctions that liberals think don't make much sense. For this strategy to work, then, originalist judges would have to convince liberal judges that they would be doing something much more troubling than what liberals think conservative justices (both originalist and non-originalist) have already been doing to liberal precedents. It's not clear how this strategy will demonstrate to liberal nonoriginalists that they had better behave themselves from now on.
The second problem is that the strategy only works if originalist judges are regularly the swing judges on a multimember court. Only then do they have genuine leverage against liberal nonoriginalist judges. Otherwise, liberal nonoriginalists will make doctrinal compromises with conservative nonoriginalists whenever this would produce a better result for them. In fact, we should expect that liberal nonoriginalists would play off originalists and nonoriginalists against each other in order to get the best doctrinal results. For example, liberal Justices would join Kennedy on most cases where they could make a majority, but will occasionally join Scalia on a 4th amendment case or Thomas on a 1st amendment case.
The point is that, precisely because of their commitments, originalist judges are rarely swing judges on a court composed of nonoriginalist liberals, nonoriginalist conservatives, and originalists. Usually the judges who have the greatest impact on how liberal judges write their opinions are moderate conservative or libertarian nonoriginalist judges. Hence, throughout most of my professional career, the Supreme Court's work has been strongly shaped by the views of three Justices: Lewis Powell, Sandra Day O'Connor and Anthony Kennedy. None of them are originalists.
The third problem is that the strategy requires that there be a substantial number of originalist judges on a multimember court, so they can make their threats genuine. But following Hugo Black's death in 1971, presidents have successfully appointed only two originalist judges in the past 45 years. With these odds, originalists are unlikely to have much leverage.
Mike Rappaport offers a different way to give nonoriginalist judges an incentive to be more originalist. Instead of threatening to chip away at nonoriginalist precedents, Rappaport suggests that originalist judges should threaten to abandon a principled commitment to originalism and impose their personal preferences. Faced with this threat, liberal nonoriginalists will cower in fear and agree to compromise on originalist decisions, because those are likely to offer better results for them than the preferences of conservative judges.
The problems with this strategy are similar to those we encountered before. There just aren't enough originalist judges, they aren't usually swing justices, and liberal nonoriginalists can play them off against conservative nonoriginalists.
But there's one other reason why this strategy is unlikely to be effective. In order to give someone an incentive to behave, you have to imagine how they will view the threat from their perspective. Here Rappaport fails to sympathetically consider how many liberals see the world. He imagines that liberals just want to promote their ideology and values through the law, while conservatives are quite serious about promoting the rule of law and original meaning even if it conflicts with their political ideology. That's why they can credibly threat to abandon those commitments. He also imagines that liberals see things this way as well.
But many liberals, I suspect, would disagree. In their view, liberal Justices are honestly trying to be faithful to the Constitution by deciding difficult cases, a view of the world that Rappaport does not seriously credit. Conversely, many liberals don't believe that many conservative judges, especially conservative originalists, are really putting aside their ideology and policy preferences in order to defend original meaning and the rule of law. Instead, many liberals suspect that many conservative judges, and especially conservative originalists, promote their ideology and policy preferences through the language of originalism, engage in bad or anachronistic history, or simply don't make originalist arguments at all when it gets in the way of promoting their deeply-held conservative beliefs.
I want to put aside the question of whether these views about conservative judges are justified or not. I am simply reporting how many liberals feel. In order for Rappaport's strategy to work, liberal judges would have to be convinced that someone like Antonin Scalia really was usually motivated by dispassionate historical analysis and the rule of law rather than by his conservative political beliefs. If they don't believe this, Rappaport's strategy does not threaten them with anything they don't already believe is happening. Therefore they have no incentive to change their behavior.
In general, the best way to get originalism taken seriously on the federal courts and the Supreme Courts is to appoint lots of originalist judges. That means electing presidents who take originalism seriously. Most presidents of both parties haven't been serious about originalism, or they have been willing to trade off the value of appointing an originalist Justice for other political considerations. If, for example, Ted Cruz gets the Republican nomination, and then is elected president, it would offer the best chance for an originalist-dominated Court to develop in many years. Whether that will happen, however, is a question of politics, not of constitutional methodology.