Randy’s post reminded me that I’ve been wanting to note that conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia’s “fainthearted” originalism. If Justice Scalia, originalism’s supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one’s own land for consumption on one’s own farm can be regulated under Congress’ power to regulate “interstate commerce”), then what is left of originalism?
One could say that it’s simply “too late” to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia’s fainthearted originalism begins to look a lot like, “I got into this business to overturn Warren Court decisions, and I’ll use originalism as tool to that end, but I’m not especially interested in reconsidering New Deal precedents.”
It especially looks like political preference because judicial deference to government exercise of arbitrary power was traditionally a “Progressive”, not [conservative idea. Conservatives adopted “judicial restraint” as a mantra to attack the Warren Court, not because it’s either a conservative or an originalist idea.
I expect that Scalia’s problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible (In Raich, Randy certainly provided Scalia with some easy ways to distinguish Wickard, but I suspect Scalia felt that Wickard should either be interpreted rather broadly, or overturned entirely, and he opted for the former). But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of “faintheartedness.”
Thus, the task for the emerging conservative majority on the Supreme Court is to figure out how to be as true as possible to the original meaning of the Constitution, given that the Court has strayed so far from it for so long. Michael Greve of AEI, who really needs to write a book on the subject, has some intriguing ideas. But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won’t do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That’s culture war politics, not originalism, and Scalia’s failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.
I once had a talk with Justice Thomas (when he was still Judge Thomas) where he expressed concern that some of his older conservative allies believed in the principle of “judicial restraint” for the sake of judicial restraint. I suggested to him that older conservatives are less concerned with adopting a principled view of the constitution, and more concerned with preventing liberals from doing harm. Thomas responded, “Yeah, but we’re in charge now” (which I took to mean, “and therefore we need a governing ideology, not simply a reactive one”). Not surprisingly, it’s Justice Thomas who has expressed the most willingness to try to figure out how to reconcile originalism with the facts created by stare decisis. Let’s hope that he succeeds Scalia as the intellectual leader of the conservative majority. I hope that Alito and Roberts, as members of Thomas’s generation and not Scalia’s and Bork’s, will not prove to be “fainthearted.”
UPDATE: This should go without saying, but I don’t mean to endorse every vote Justice Thomas has ever cast, as opposed to his non-“fainthearted” approach to originalism.
FURTHER UPDATE: Liberal critics of Scalia have also (correctly) noted that he is strangely silent in affirmative action cases with regard to the original understanding of the Fourteenth Amendment, which arguably would allow racial preferences, at least for African Americans. Thomas receives the same criticism, but I tend to agree with Scott Gerber that in race cases, Thomas’s originalism manifests itself in resolving the ambiguous meaning of the equal protection clause by reference to (what he sees as) the founding and enduring principles of the American experience. Whether this is a sincere alternative “natural rights” form of originalism, or “too convenient,” I’ll leave for another time, but it’s at least an attempt at originalism.
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