Posner on Originalism/Textualism

Trump has nominated Judge Gorusch to replace Justice Scalia on the Supreme Court. My very brief review of Judge Gorusch suggests that he’s serious and competent. His conservative views shouldn’t, by themselves, be a reason to exclude him from the Court. If the Democrats resist his nomination, it will not (or should not) be because of his abilities as a judge. Rather, their justification will have to do with Merrick Garland who was also a Presidential nominee for the Supreme Court and who was also very qualified. Gorusch’s nomination is the result of a bare-knuckle power play that had nothing to do with judicial competence. Any howling about Democratic obstructionism is going to be disingenuous. That said, I think Gorusch will ultimately be sworn in as a Justice.

But that’s not why I wanted to write a post. I just get twitchy when people start waxing poetic about Justice Scalia (and soon, Judge Gorusch’s) purported judicial philosophy of “originalism” or “textualism.” Those labels are mostly just noise. When you look at actual decisions, you find that this philosophy doesn’t seem to restrain the judge very often — the judge’s divination of the original intent, and the decision of the case, tends to very happily align with the judge’s ideological views. Judge Posner is smarter than me and did a better job of critiquing this purported philosophy than I could.

Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

. . .

It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified. Yet Scalia and Garner claim that “recent research persuasively establishes that [the ruling in Brown that separate but equal is not equal] was the original understanding of the post-Civil War Amendments,” citing for this proposition a single law review article published seventeen years ago.

. . .

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

Thus they declare that “a fair system of laws requires precision in the definition of offenses and punishments,” implying that judges are entitled to use a concept of “fairness” to interpret statutes creating offenses and punishments. How is that to be squared with textual originalism? They say that “textualism, in its purest form, begins and ends with what the text says and fairly implies” (emphasis added), but evidently Scalia and Garner are not committed to its “purest form,” for they say that “determining what is reasonably implied [by the words of a statute] takes some judgment” (emphasis in original). They endorse the “rule of lenity”—the interpretive principle that ambiguity in criminal statutes should be resolved in favor of the criminal defendant—without showing how it can be consistent with textual originalism.

(emphasis added). The whole thing is worth reading. Judge Posner describes Justice Scalia’s approach to textualism as “remarkably elastic.”

Judge Gorusch’s approach to deciding cases is likely as valid as the approaches of other conscientious judges. But, when someone tries to sell you on the merits of “textualism” or “originalism” be aware that they’re probably trying to sell you something that you might not otherwise buy.