The future of originalism after Scalia

|The Volokh Conspiracy |

Prominent legal scholar Eric Posner recently argued that originalism is likely to fade away in the aftermath of the death of Justice Antonin Scalia, its leading advocate on the Supreme Court. In Posner's view, the Supreme Court is virtually the only significant audience for originalist constitutional arguments, and it is unlikely to be much interested anymore. Yale Law School Professor Jack Balkin responds that there are many other important audiences interested in originalist ideas, including lower court judges, conservative political movements, and the legal community outside the courts, among others.

I think Balkin's critique is largely on target, and would add some additional points. First, it is premature to conclude that the death of Scalia portends a major decline in interest in originalism among Supreme Court justices. It is quite possible that Senate Republicans will succeed in blocking President Obama's nominee from replacing Scalia. If so, and a Republican candidate (at least one other than Donald Trump) wins the election, Scalia might well be replaced by a like-minded originalist. Originalism is now the dominant constitutional theory on the political right, and a GOP president would feel some pressure to replace Scalia with an adherent of the same worldview.

Even if Obama is able to replace Scalia with a nonoriginalist liberal, originalism might still rebound from that setback in the near future. There are three other relatively elderly justices who might well leave the Court in the next few years, all of them nonoriginalists: Stephen Breyer, Ruth Bader Ginsburg, and Anthony Kennedy. Depending on who wins the 2016 and 2020 presidential elections, it is quite possible that some or even all of these justices might be replaced by successors more sympathetic to originalism. Even if they are replaced by Democratic presidents, it is possible that one or more of the new liberal justices might be jurists influenced by the growing liberal originalist movement led by scholars such as Akhil Amar and Balkin himself. A decade from now, the extent of support for originalism on the Supreme Court could easily be greater than it was just before Scalia's passing, though it could also be smaller or about the same. All three scenarios are plausible.

Whatever happens on the Supreme Court, Balkin is right to emphasize that originalism is a significant presence in the legal culture more generally. Its supporters are unlikely to just pack up and go away merely because the current Supreme Court turns against them. Modern originalism began as an oppositional movement attacking the decisions of a largely nonoriginalist Supreme Court in the 1960s and 70s,. It could potentially become one again.

In that respect, it is worth emphasizing that originalism—like other constitutional theories—rarely achieves its greatest impact by immediately influencing the Supreme Court justices of today. Rather, influential academic theories have their greatest impact on the younger generation of lawyers and jurists who—unlike most Supreme Court justices—often have not yet formed strong opinions on major constitutional issues. The biggest impact of early twentieth century legal realism, for example, was not on then-sitting Supreme Court justices. It was on the generation that followed, which ended up forging the New Deal revolution in constitutional law. The same thing may turn out to be true for the originalist theories that have achieved prominence over the last twenty to thirty years.

Eric Segall argues that predictions of originalism's demise are misplaced because originalism never had any significant influence in the first place. He contends that the resort to originalist arguments by judges—including Scalia himself—was always just "window dressing" intended to justify decisions that were actually based on political agendas. This ignores the fact that originalist considerations have sometimes led judges to vote against their political predelictions, as with Scalia's votes in the flag burning cases, and in many cases involving the rights of criminal defendants. I don't doubt that some judicial appeals to originalism (like some appeals to other constitutional theories) are disingenuous. That does not mean all or even most of them are. But even if judges do in fact use originalism only as window dressing, such practices only make sense if there is an audience out there that genuinely cares about originalism and might potentially be fooled by disingenuous appeals to their preferred methodology. Otherwise, judges could simply dispense with the charade.

And if that audience exists, at least some substantial part of it (e.g.—lawyers and other legally sophisticated observers) might well be able to tell the difference between logically defensible appeals to originalism, and those that quickly fall apart upon inspection. It would applaud the former, but censure the latter. To the extent judges care about the good opinion of the originalist audience, that concern would limit their departures from originalism—even if they personally do not care about originalism for its own sake, but are only concerned about their image and reputation. Both common sense and academic research suggest that judges do in fact care about their reputation among professional and other audiences. Originalism may, in some cases, be the tribute that vice pays in order to appear virtuous. But maintaining the appearance of virtue may require some degree of genuine constraint on sinful behavior.

None of this proves that originalism will sweep the field, or that living constitutionalism will disappear. Far from it. In a legal and political culture as deeply divided as ours is, I highly doubt that any one theory of constitutional interpretation will achieve dominance any time soon. Both originalism and various versions of living constitutionalism will continue to have prominent adherents in the judiciary, the academy, and the legal profession more generally. And, as Balkin emphasizes, many judges will continue to draw on both originalist and nonoroginalist arguments without making a definitive commitment to any one methodology. But, while originalism may not conquer, neither is it likely to slink away in defeat. The struggle over constitutional interpretation is a longterm war of attrition, not a blitzkrieg where victory or defeat turns on a single dramatic event—not even the death of an admittedly influential Supreme Court justice.