Posted by arispitzer on Apr 18, 2023 in Per Curiam
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Cameras in the High Court: An Empirical Examination of Support for Supreme Court Justices
Ryan C. Black,* Ryan J. Owens,† Timothy R. Johnson,‡ and Justin Wedeking§
On March 16, 2023, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) introduced legislation that would require the United States Supreme Court to allow cameras in its Courtroom.[1] The bill instantly made news. It provided a rare splash of bipartisan color in an otherwise black and white polarized Washington, D.C. That the bill also might trigger a direct confrontation with the High Court made it even more newsworthy. But while the bill made news, it hardly represented a new effort. For years, politicians, the media, and interest groups have lobbied and rattled sabers to dragoon the Court into allowing cameras in its Courtroom. Throughout, the Court has remained unshakably opposed.
In a study we published in Political Behavior,[2] we discovered that Justices have legitimate reasons to be cautious about placing cameras in their courtroom. There, we examined how people’s exposure to oral argument video footage changed their attitudes about judicial legitimacy. We found that, under certain conditions, cameras can help enhance the Court’s legitimacy. Yet, under other conditions, cameras can damage the Court’s legitimacy. From our perspective, the fact that exposure to a single snippet of footage could immediately impact a person’s general attitudes towards the judiciary was noteworthy. Those results underscore the consequential nature of the proposed legislation.
But we assert here that it is not just the Court as an institution that cameras will affect. Cameras also could influence what people think about individual Justices. While Justices are not above public scrutiny, it is important to know what influences people’s views of them and how those views might change. That is, how might exposure to video change what people think about the judges they observe? What is more, with recent threats on Justices’ lives, it seems particularly critical to know how the public’s views on Justices may change as a function of cameras. We do so here.
As with our earlier findings, the results here are mixed. On the one hand, there is some good news for people who want cameras in the Supreme Court. Respondents who watched a neutral exchange between a judge and attorney wound up supporting the judge more than those who listened to that neutral exchange. Additionally, respondents thought no less (nor more) of a judge when they watched him in a contentious exchange with an attorney versus listening to that exact same contentious exchange.
On the other hand, there is also some worrisome news. Respondents supported the judge significantly less when they watched him engaged in a contentious exchange versus watching him in a neutral exchange. And this effect existed in two different styles of video presentation: a dynamic “Zoom-like” format that focused on the individual speaker and a static, wide-angle, shot of the full bench and attorney’s lectern. We say that these results are worrisome because the media may be more likely to disseminate contentious exchanges than neutral exchanges. Viewed on the whole, then, these findings counsel caution and more investigation before the Court adopts cameras.
We begin by briefly presenting the arguments for and against cameras. We then explain our experiment, how we measured our variables, and then present our results. We conclude with a discussion of what may come to pass if the Court adopts cameras.
Cameras at the Supreme Court
On Thursday March 21, 2013, spectators began forming lines to reserve seats at oral arguments for two highly salient cases: US v. Windsor and Hollingsworth v. Perry.[3] Interestingly, neither of those cases were on the Court’s hearing list for the day. Nor were they on the list for the next day or even the following Monday. The Court heard Hollingsworth on Tuesday, March 26th—a full five days later—and Windsor on Wednesday, March 27th —a full six days later.
It is probably a sign of the Court’s institutional strength that so many people waited in line to observe oral argument; but spectator space is limited. There are typically fewer than 100 seats available for those who stand in line to watch the Court.[4] These space constraints might be irrelevant if people could watch the Court’s arguments via television or livestream. But they cannot. The Court repeatedly has denied requests by various entities to place cameras in the courtroom. As a result, many people continue to push for cameras and have lobbied Congress in such efforts.
Those who support cameras at the High Court believe cameras will make the Court more transparent and accountable to the public. They argue that those features would increase the Court’s legitimacy. Similarly, cameras might educate and inform the public about the Court. People would learn about the Court; and, after all, scholarship shows that to know the Court is to love the Court.[5] In this vein, Justice Elena Kagan once said that cameras might “allow the public to see an institution working thoughtfully and deliberately and very much trying to get the right answers, all of us together.”[6]
But others worry about the effects of cameras. Some Justices opine that the media will reduce a complex oral argument to a brief, unrepresentative, video clip that make the Justices look bad. Justice Antonin Scalia expressed this apprehension:
I am against it [cameras] because I do not believe, as the proponents of television in the Court assert, that the purpose of televising our hearings would be to educate the American people. That’s not what it would end up doing. If I really thought it would end up educating the American people I would be all for it . . . but they wouldn’t see all of [what we do] . . . .[W]hat most of the American people would see would be 30-second, 15-second takeouts from our argument, and those takeouts would not be characteristic of what we do.[7]
Other Justices worry that televising oral argument will change the way they and their colleagues behave and thereby lessen the value of oral argument. For example, Chief Justice John Roberts once declared: “I do think that cameras in the Courtroom would impede [the] process . . . . I think that if there were cameras, the lawyers would act differently. I think, frankly, some of my colleagues would act differently and that would affect what we think is a very important and well-functioning part of the decision process.”[8] Other Justices echo this concern. Justice Elena Kagan once stated that cameras could cause Justices to “filter ourselves in ways that would be unfortunate.”[9] These Justices are concerned that televising oral argument not only will influence the Court’s legitimacy but also will force Justices to change their behavior so as to avoid public blowback.
The question remains whether people would in fact change their views of the Justices if they watched them at oral argument. If so, it stands to reason that the Justices themselves might change in response. And so, we sought to investigate whether people’s views of the Justices might change. Given that we already have published a study on how exposure to video might affect the Court’s legitimacy, it seemed that the logical next step would be to examine how the public’s views of the Justices they watch may change. It is to this task that we now turn.
The Survey Experiment
We implemented a survey experiment that exposed respondents to real video clips from two state supreme courts. The experiment relied on 1,475 respondents and used a 2 (video v. audio) x 2 (contentious v. neutral) x 2 (dynamic v. static) plus control design. The treatment exposed individuals to a single 50–60 second clip of one of two state supreme court oral argument exchanges between an attorney and a Justice. Some of our respondents listened to an oral argument while others watched it. Some respondents observed a Justice aggressively question an attorney while others observed a polite and deliberate exchange between the two. And some respondents saw a dynamic camera angle that showed the judge and the attorney in a Zoom-like format while others observed a static, wide-angle shot of the full bench from a distance. After observing these oral argument clips, we asked respondents a series of questions about their views of the judges they observed. This included questions about judicial legitimacy, which we have discussed elsewhere,[10] as well as questions about the specific judge whose behavior our survey respondents observed.
Respondents watched or listened to clips from the Minnesota and Indiana supreme courts. We selected these two courts for a handful of reasons. First, we sought to mitigate possible confounders like respondents’ preferences for or against certain accents. The two accents in our sample were quite similar. Therefore, respondent differences will not be a function of accent preferences. Second, we needed videos that were relatively high quality. Few states provided video footage, let alone consistently good footage that we could use. These states were among the best. The states also provided important variation for one of our treatments (camera angle), with Indiana using the dynamic Zoom-style format and Minnesota employing a static, wide-angle approach.[11]
We utilized Lucid Theorem to execute an experiment that focused on the effects of watching and listening to portions of an oral argument.[12] Though a convenience sample, Lucid samples provide demographic and experimental results that track well with U.S. national benchmarks[13] and are very common in experimental studies like ours.[14]
Because we seek to examine how the public’s views on Justices will change because of watching oral argument, we calculate a Judge Support Score for each respondent. The score is a composite of answers to three separate questions: (1) Whether the respondent believed the judge behaved professionally, (2) whether the respondent had confidence in the judge’s ability to do his job, and (3) whether the respondent believed the judge would decide future cases fairly. For each of these statements, our participants could say they strongly agreed, somewhat agreed, neither agreed nor disagreed, somewhat disagreed, or strongly disagreed. As an empirical matter, we have good evidence that responses to all three of these questions is driven by a single “latent force,” which allows us to condense them into the single Judge Support variable.[15] Larger values indicate more support for the judge (e.g., agreement that he behaved professionally) and smaller values indicate less support (e.g., disagreement that he behaved professionally).
Results
As was the case with our original study, the results here are mixed. But taken as a whole, we believe they too counsel caution on this important decision.
We begin with an analysis of respondent views toward judges after exposure to a neutral exchange between the judge and an attorney. Again, these are clips where a Justice and attorney engaged in a polite exchange over a legal point. Figure 1 displays the effect that the medium (i.e., audio or video) had on average levels of Judge Support. These results show that people who watched a neutral exchange from the dynamic angle held more positive views toward the judge than people who listened to that exchange. In the left half of the figure, we see that respondents who listened to the neutral exchange in the Indiana court held a Judge Support score of approximately 0.77 but those who watched that neutral exchange held a Judge Support score around 0.81. The difference between these two values is statistically significant. Somewhat surprisingly,[16] we observe no differences between listeners and watchers in the neutral Minnesota case. On balance, this is a positive finding for those who want cameras in the Court.
Interestingly, Figure 2 shows that when we examine the difference between audio and visual in the contentious context, there are no differences in Judge Support among our respondents. Those who listened to the contentious exchange in the Indiana context had a support score of 0.72 while those who watched the contentious exchange had a score of around 0.74—a difference that does not approach standard levels of significance. The results are similar in the Minnesota case. Those who listened to the contentious exchange had a support score of 0.66 while those who watched the contentious exchange had a score of 0.68. These results would seem to support those who want cameras in the court, at least to the extent that they satisfy the “do not harm” standard.
Our last analysis is perhaps the most revealing and, from the Justices’ perspective, the most concerning. Here, we examine how respondents differentially react when exposed to a video clip of contentious versus neutral exchanges between a Justice and an attorney. We contend this comparison is revealing because it partially accounts for the likely filtering role that the media would play in a world where cameras are allowed. Editors would showcase contentiousness over neutral content.[17]
The question here is whether respondents who are exposed to the contentious video think any differently of the Justices than those exposed to the neutral video. As Figure 3 shows, respondents supported judges significantly less after watching a contentious exchange versus watching a neutral exchange. What is more, this deleterious effect exists in both styles of video presentation that we examined.
Consider respondents exposed to the Indiana clip. Those who watched the neutral exchange had a support score of 0.81 while those who watched the contentious exchange had a support score of 0.73, a statistically significant difference. While this 10 percent relative decrease is not overwhelming in terms of its substantive magnitude, recall that it obtains after exposure to just a single video clip. Iterative exposures could yield larger impacts.
Despite a less dramatic and engaging format, the Minnesota format produces similar effects. Respondents who watched a neutral exchange had a support score of 0.81 while those who watched a contentious exchange had a support score of 0.68, a relative decrease of 16 percent that is also statistically significant.
Additional study is needed to address whether this effect might magnify after seeing multiple clips, but at the very least it suggests that there are potentially harmful consequences that policymakers must consider.[18]
Discussion
These findings show that scholars need to conduct more research—and communicate their findings to policymakers—before Congress and the Court introduce cameras into the Courtroom.[19] The results in Political Behavior showed that, under likely conditions, people will support the Court less after watching oral argument. Our results here are similar. There are some conditions under which people think more favorably of judges after watching oral argument. But when we examine the clips that people are likely to see if the Court moves to cameras, we find some immediate and significant decreases in support for judges. And it is important to note that this drop occurs as the result of fairly typical judicial behavior.
Going beyond the data for a moment, we are wary of the unintended consequences of introducing cameras. As we stated above, one reason to oppose cameras is that Justices might change their behavior at oral argument to avoid providing fodder for clips that might be used to attack them or the Court. Justice Souter told the House of Representatives that he in fact changed his behavior as a state supreme court Justice because of cameras:
“I can testify from personal experience that the cameras certainly affected my behavior because I knew that there were some questions that I might ask just within the context of a case, which if I asked, would be the excerpt, the soundbite totally out of context on the six o’clock news . . . my fifteen second question would be there . . . and quoted that way it would create a misimpression either about what was going on in the Courtroom, or about me, or about my impartiality, or about the appellate process.”[20]
Souter changed his behavior to avoid precisely what our results show may happen: people will think less of the judge when he or she asks hard questions. The judge, in anticipation, will ask fewer questions and pull punches at oral argument. Cameras could shut down or reduce Justice questioning. Reduced Justice questioning will lead to poorer information for the Justices. And poorer information will diminish the quality of the Court’s decisions.
It is also likely that the Court might decrease the amount of time it devotes to oral argument. Today, oral arguments can last roughly two hours. The petitioner attorney receives two minutes of uninterrupted time to summarize her argument to the Court. She then spends roughly 28 minutes answering any Justice’s questions. After that time concludes, each Justice (in order of seniority) can ask the petitioner follow up questions. When all the Justices have finished asking their follow up questions, the petitioner concludes, and the respondent begins. The respondent also has two minutes of uninterrupted time, 28 minutes to make her case, and then must answer each Justice’s (in order of seniority) follow up questions.
With all this time, Justices and counsel are bound to say things that others could easily take out of context. To minimize the possibility that Justices would say something the media would report out of context, it is easy to imagine the Justices significantly reducing the amount of time for oral argument or perhaps even deciding more cases on the written briefs alone.
These two possible outcomes could diminish the quality of the Court’s opinions. Oral argument is an important part of the Court’s decision-making process. As it stands today, Justices use oral argument to persuade each other. They play devil’s advocate to gauge their colleagues’ positions, to begin coalition building, and to begin formulating opinions. They use it to probe for each party’s weaknesses and limiting principles. By engaging the attorneys, Justices can obtain more information about the consequences of possible likely decisions. In fact, 80 percent of the issues raised at oral argument appear for the first time there (i.e., do not appear in the parties’ briefs); and 33 percent of the issues raised uniquely at oral argument make it into the Court’s final opinions.[21] All this is to say that oral argument is useful for the Court. But if the Justices believe that usefulness has faded—or that the costs of oral argument outweigh the benefits—they may retreat in a way that reduces the overall quality of their opinions.
Conclusion
When Senators Durbin and Grassley introduced their legislation to require the Court to allow cameras, they highlighted the transparency and accountability cameras would bring to the Court. They might be correct. But what seems clear from our analyses here and elsewhere is that they have overlooked the potential costs associated with cameras. One of those costs concerns the Court’s legitimacy. Another cost concerns how people view the Justices themselves.
It seems quite likely that the polarization in people’s views towards particular Justices would increase with cameras. Seeing the Justices could exacerbate underlying positive or negative feelings, especially where those Justices engage in contentious exchanges with counsel. There is simply not yet enough data to know whether the putative benefits of cameras would outweigh the costs. Our suggestion, therefore, is to engage in further study of this important topic before undertaking a major change. With so much at stake, caution is the best option.
* Professor of Political Science, Michigan State University; Faculty affiliate, MSU College of Law.
† George C. and Carmella P. Edwards Professor of American Politics, Leon Epstein Faculty Fellow, University of Wisconsin-Madison.
‡ Horace T. Morse Distinguished Professor of Political Science and Law, University of Minnesota.
- Professor of Political Science, University of Kentucky.
[1] Cameras in the Courtroom Act, S. 807, 117th Cong. (2021).
[2] See Ryan C. Black, Timothy R. Johnson, Ryan J. Owens, and Justin Wedeking, Televised Oral Arguments and Judicial Legitimacy: An Initial Assessment, Pol. Behav. (forthcoming 2023), https://link.springer.com/epdf/10.1007/s11109-022-09848-5?sharing_token=8p4EWuf1g0ok2H3WHgkHq_e4RwlQNchNByi7wbcMAY7uKQc9xdph2aFTn4Z3hYxgL05DzNyXEcVHfYpGlaPKfD2_NdTS2VHY4yZh9M5iaFBu_naIVcUdrnzZC48palAwvdWtYOsl1tlgdWKWauLNYd0b7X1Eb70JuIPUcgTWA4g=.
[3] See Jeremy W. Peters, Cold, Wet Wait for Tickets to Supreme Court’s Same-Sex Marriage Cases, N.Y. Times, Mar. 25, 2013.
[4] Id.
[5] See James L. Gibson and Gregory A. Caldeira, Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court, 71 J. Pol. 429 (2009).
[6] See Richard Wolf, Cameras in the Supreme Court? Not Anytime Soon, USA Today, Mar. 7, 2019.
[7] See C-SPAN, Justice Scalia on Cameras in the Supreme Court, YouTube (Jul. 26, 2012),https://www.youtube.com/watch?v=F6gktBWhzc8.
[8] See C-SPAN, Chief Justice Roberts on Cameras in the Court, YouTube (Oct. 17, 2018), https://www.youtube.com/watch?v=Ywlk5CgwNT4&list=PL4CBB5711EF7BD211&index=5.
[9] See Wolf, supra note 6.
[10] See Black et al., supra note 2.
[11] Our Minnesota clip came from a 2009 case, which was argued at a time when the court utilized a single, static camera. As of this writing in April 2023, Minnesota now appears to show oral argument using three camera angles: the attorney at the podium and two medium-angle views that portray the left and right side of the bench. See, e.g., Oral Argument, Johnson v. Freborg, Case No. A21-1531 (2023), https://www.mncourts.gov/SupremeCourt/OralArgumentWebcasts/ArgumentDetail.aspx?vid=1603 [https://perma.cc/5CTH-35CC].
[12] Lucid is a nationally reflective sample that improves upon earlier platforms like Amazon’s Mechanical Turk by using respondent quotas to achieve a census-balanced sample. While Lucid samples are convenience samples, they provide demographic and experimental results that track well with U.S. national benchmarks (Coppock & McClellan, 2019) and are increasingly common in experimental studies like ours. See, e.g., Alexander A. Coppock and Oliver A. McClellan, Validating the Demographic, Political, Psychological, and Experimental Results Obtained from a New Source of Online Survey Respondents, 6 Rsch. and Pol. 1 (2019); Albert H. Fang and Greogary A. Huber, Perceptions of Deservingness and the Politicization of Social Insurance: Evidence From Disability Insurance in the United States, 48 Am. Pol. Rsch. 543 (2020).
[13] See Alexander A. Coppock and Oliver A. McClellan, Validating the Demographic, Political, Psychological, and Experimental Results Obtained from a New Source of Online Survey Respondents, 6 Rsch. and Pol. 1 (2019).
[14] See, e.g., Albert H. Fang and Greogary A. Huber, Perceptions of Deservingness and the Politicization of Social Insurance: Evidence From Disability Insurance in the United States, 48 Am. Pol. Rsch. 543 (2020).
[15] To make this determination we calculated a reliability statistic called Cronbach’s alpha, which allows us to assess the reliability between those three items and the underlying scale (latent force) that we believe generated them. The value for our three measures is 0.84, which corresponds to “good” reliability (see Joseph A. Gliem and Rosemary R. Gliem, Calculating, Interpreting, and Reporting Cronbach’s Alpha Reliability Coefficient for Likert-Type Scales, Midwest Research-to-Practice Conference in Adult, Continuing, and Community Education (2003) (available online at https://scholarworks.iupui.edu/bitstream/handle/1805/344/Gliem%20&%20Gliem.pdf [last accessed 4/16/23]). Relatedly, if we estimate an exploratory factor analysis using the three questions, we find evidence that a single factor explains 98% of the variance.
[16] In a perfect world, we would have been able to portray the exact same content through three different approaches: audio only, dynamic video, and static video. Since we could not do this, however, we are unable to offer a definitive explanation for why this difference exists.
[17] We admittedly take an “old world” approach to thinking about the media to the extent we envision what snippets are potentially featured on the evening news after oral argument has taken place. Our arguments, however, do easily generalize to more contemporary conceptualizations of the news media, as well. Digital providers are driven by clicks and page views and so it takes very little imagination at all to see potential click-bait headlines like “Justice Sotomayor Schools State Attorney.”
[18] To be clear, our results do not support the conclusion that the medium of video is uniquely harmful as compared to audio. That is, we observe analogous content effects among the audio-only conditions where attitudes towards the judge are significantly lower in the contentious versus neutral content conditions. Our belief, however, is video will be uniquely featured in a way that audio content – contentious or otherwise – currently is not.
[19] Whether Congress has the constitutional authority to require the Court to allow cameras is a different question and one into which we do not wade here.
[20] U.S. Supreme Court Appropriations: Hearing Before House Appropriations Subcommittee, 104th Cong. (1997), https://www.c-span.org/video/?70835-1/us-supreme-court-appropriations&playEvent [https://perma.cc/3AAE-3ZK7].
[21] See Timothy R. Johnson, Oral Arguments and Decision Making on the United States Supreme Court (2004).
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Posted by mmullin on Sep 26, 2023 in Per Curiam
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Review: Keeping Our Republic
Benjamin Pontz*
Bernhardt, David. You Report to Me: Accountability for the Failing Administrative State. New York: Encounter Books, 2023.
Thapar, Amul. The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him. New York: Regnery Publishing, 2023.
Wallach, Philip. Why Congress. New York: Oxford University Press, 2023.
***
Americans love Benjamin Franklin. An electricity-experimenting daredevil, an independent thinker whose penchant for pithy one-liners shines through his legendary almanac, and an unflinching partisan for his home state, America’s first—and arguably greatest[1]—commonwealth (Pennsylvania), what’s not to like?
Perhaps no quotation of Franklin’s has endured to greater acclaim than his quip on September 18, 1787, at the end of a grueling summer of drafting a constitution to replace the Articles of Confederation. As the story goes, when asked what kind of government this new constitution would institute, Franklin responded, “A republic, if you can keep it.”
Franklin’s declaration has reverberated ever since. Justice Neil Gorsuch used it as the title of his 2019 book.[2] Former House Speaker Nancy Pelosi invoked it as she announced that the House would seek to impeach former President Donald Trump.[3] Scores of articles (including this one) have leveraged it for titles and analytical frameworks.[4]
Its cultural resonance is as deep now as its revolutionary character was then. But more profound than Franklin’s aphorism is the text of that constitution itself. Especially its first word, “we.” True, the Constitution’s preamble contains high-minded rhetoric about the aspiration to form a union more perfect each day than the one before it. At its core, though, “we” is a statement about where sovereign power lies: the people.
But cognizant of the peril in concentrating power,[5] almost immediately, our charter for a new republic began to divide it. First, the Constitution “split the atom of sovereignty” between the federal government and the states.[6] And from there, in its first three articles, it divided the power that remained in the federal government among three departments: the legislative, the executive, and the judiciary.[7] For any institution under this new constitution to discharge power in a manner inconsistent with what it delineates would be to act ultra vires, beyond the law.
I begin with these first principles not to belabor a Schoolhouse Rock conception of American democracy,[8] but to start with the premise that the legitimate exercise of power in the United States must trace its origin to this constitutional structure. Two leading originalist scholars of their generation—William Baude and Stephen Sachs—treat this idea like a chain of title, arguing that our law “comprises the rules which were law at the Founding and everything that has been lawfully done under them since.”[9] Although this framework may more commonly examine claims about rights, it applies with equal force to matters of structure.[10] This idea that process drives the legitimacy of legal change is uniquely part of our constitutional fabric and, indeed, our law.[11]
Against that backdrop enter three new books: Why Congress by Philip Wallach, You Report to Me by David Bernhardt, and The People’s Justice by Judge Amul Thapar. Superficially, the first is about Article I, the second is about Article II, and the third is about Article III. Really, though, they offer complementary perspectives on the structural separation of powers: the first offering perspective from outside the institution, the last two from within. And taken together, they paint a rich portrait of what a government that operates in accordance with our Constitution might look like. Just as importantly, they offer a call to reclaim the substantive value of procedure—the idea that self-government according to a rule of law prescribed in advance through methods that are ours until we change them has inherent value, independent of particular outcomes.
I should note here this review essay’s ulterior motive: to announce that the Federalist Society’s 2024 National Student Symposium, to be held at Harvard Law School, will focus on this structural separation of powers. Specifically, what is the point? And rather than gloss over practical questions of implementation or dwell in the land of hollow ipse dixit (where, unfortunately, talk of the structural separation of powers often languishes), the symposium will focus squarely on the question of why we should care so much about procedure.
In a panel on federalism, we will explore the curious—and sometimes nebulous—line between federal and state governments. We will consider how common law adjudication in states relates to the legislation we demand to make law at the federal level. We will examine how states may regulate the content of substantive rights and whether state regulation may transcend state borders.[12] We will think about the Tenth Amendment. And we will weigh what all of this means for the “double security” federalism ostensibly provides to the people’s liberty.[13]
In a panel on executive-legislative relations, we will examine the possible tension between a desire for stability across presidential administrations (implicit in the rule of law) and the president’s role in driving policy change (part of the accountability rationale in recent Supreme Court decisions such as Seila Law[14]). Along the way, we will consider how useful the unitary executive theory and the nondelegation doctrine might be to analyzing these sorts of questions.
In a panel on judging, we will focus on how the judicial role as it has evolved comports with our constitutional structure. In particular, we will examine universal vacatur under the Administrative Procedure Act, the evolution of standing doctrine (including “special solicitude” for states), and the arguments for and against so-called “judicial supremacy,” the idea that judges are the final, unreviewable arbiter of what the law means.
Finally, in a panel on changing how we separate powers, we will confront the question of what to do if we are unsatisfied with how our Constitution configures powers. Can it be changed? If so, how? Elections? New statutes? Judicial reinterpretation? Liquidation? Constitutional amendments? A constitutional convention? We will consider the virtue of large-scale constitutional reform as well as what we can learn from states (and perhaps even judicial reform efforts in other countries, like Israel).[15]
The animating theme of the symposium will be the substantive value of separating power. All three of these books cast new light on that question, making them well worth examining in connection to this symposium.
I. Wallach
The most substantial book of the trio, Wallach’s ode to Congress makes the case that a legislature—for all its warts—remains the one indispensable institution in a republic like ours. Not only is this true as a matter of constitutional first principles, but, Wallach argues, it is also true as a practical matter. Only through the legislative process can Americans reconcile their “disparate interests, conflicting visions of the good, and divergent judgments about prudent policy” in a way that is legitimate and enduring.[16] That might be true in some sort of metaphysical sense—against some external, outcome-oriented metric, the policies that emerge from Congress might just be “better.” But Wallach’s thesis is that some combination of the formal imprimatur of a representative institution and the functional bargaining inherent in the legislative process leads to a “viable and functional politics . . . far more valuable to our social well-being than a few technocratically optimal policy choices ever could be.”[17] Put more simply, in a republic, the process is the point.
The remainder of the book tracks the effect of how legislative process has evolved on the capacity of Congress. Wallach structures his story in three sections: when Congress worked,[18] how Congress transformed,[19] and the cost of congressional dysfunction,[20] his contemporary diagnosis falling somewhere between declinist screed and low-key cheerleading[21] He closes with three visions for what Congress’s future might hold.[22] In contrast to many books of this genre, in which policy recommendations read like a slapdash appendage that cheapens the preceding analysis, Wallach’s concluding reflections are the best part of the book.
In the opening section, Wallach offers two vignettes that, in his telling, show Congress at its best. The second is more convincing than the first. Wallach begins by detailing Congress’s interactions with the Roosevelt administration during World War II, especially in the realm of domestic policy. Conceding that “even history buffs” might draw a blank as to Congress’s role in World War II and acknowledging Congress’s tendency to delegate to nascent executive agencies, Wallach nevertheless contends that “delegations were bounded, both in scope and in time, and legislators did not merely recede into the background once they empowered executive branch officials. . . . Their efforts were indispensable in generating the trust in the executive branch’s activities (including secretive ones) that was necessary to marshal the nation’s resources effectively.”[23] Interesting nuggets about the Current Tax Payment Act of 1943 and the reauthorization of the Office of Price Administration notwithstanding, the chapter can have the feel of reverse engineering a totalizing goldilocks justification for Congress’s behavior.[24] To be sure, staring down the barrel of the Holocaust amid a nationwide war effort that fueled dramatic social change likely had a certain clarifying effect as to the stakes of congressional action (or inaction). But this chapter was the first of a few occasions where the general zeitgeist of the time seems likely to have played a more formative role in shaping congressional behavior than Wallach lets on through his necessarily Congress-centered account.
Wallach’s second vignette is more compelling. Complicating the popular narrative about President Johnson and Martin Luther King Jr. as the “great men” of the struggle for civil rights,[25] Wallach focuses on legislative bargaining in Congress laying the groundwork for the broad, enduring social consensus that the Civil Rights Act of 1964 prefigured.[26] It is a tough case. Treating the requirement that two-thirds of senators vote to break what became a 75-day filibuster as a “blessing in disguise” and praising the Senate’s “wisdom” in celebrating its “institutional values and therefore the endurance of the American republic” by naming one of its office buildings after Richard Russell, one of the chief architects of that filibuster, are not arguments most scholars would make.[27] But those rhetorical flourishes are peripheral to Wallach’s core argument: in contrast to what southerners regarded as the “undemocratic imposition” of Brown v. Board of Education,[28] the painstaking legislative process conferred a procedural legitimacy on the Act that preempted meaningful backlash and enabled bipartisan consensus on civil rights that changed the nature of American public opinion.[29]
Wallach describes the legislative maneuvering in detail. It suffices here to make two observations. First, Senate Minority Leader Everett Dirksen (R–IL) bought into the legislative process, tinkered with the bill around the edges, and ultimately claimed credit for advancing the bill with support from the Senate’s Republican minority.[30] Letting a “white, antigovernment Midwestern conservative . . . [who] blocked legislation for years . . . [be] allowed to take credit for” a bill he was finally forced to accept “irked liberals.”[31] But it gave Dirksen and his Republican conference a stake in the outcome. Second, Senate leaders—perhaps having no other choice—let “obstruction” play out on the Senate floor. In those days, the filibuster stopped other action on the Senate floor, so it forced attention on the matter at hand. And after seventy-five days and 534 hours of debate, the bill passed 73–27.[32] Thereafter, only a “tiny minority” of elected Southerners obstructed the Act’s implementation; the legislative process displayed to Americans having laid bare the overwhelming consensus forged in the Senate.[33]
In Wallach’s telling, the lesson of Congress’s ability to pass civil rights legislation is simple: “A well-functioning legislature is indispensable to ensuring that in the process of navigating social changes, no group is driven to desperation.”[34] Only in a legislature can the vast diversity of a country like ours and the vast complexity of the challenges we face interact in ways that lead to lasting social peace.
But not every legislature. And not the one we have today. In the decades that followed that high point of civil rights legislation in the 1960s, political realignment, institutional reform, and societal change have left Congress on the path to “decrepitude.”[35] With the benefit of hindsight, the warning signs are legion.
During a period of Democratic dominance in Congress and Republican dominance in the White House during the 1970s and 1980s, Republicans lost the faith. Even after reclaiming control of the House in 1994, Speaker Newt Gingrich’s institutional reforms—such as giving the president a line-item veto and repealing the War Powers Resolution—sought to hamstring his own institution at the expense of the presidency, his Reaganite critiques about the president’s superior electoral legitimacy sounding awfully Wilsonian in their contempt for Congress.[36]
Democrats, meanwhile, lost the plot. A clash between Reps. Richard Bolling (D–MO) and Phillip Burton (D–CA) lays bare the tension between process and outcomes that has led us to the worst of both worlds. Just a few years after the success of civil rights legislation, the pair clashed ostensibly over the jurisdictional divides between committees and subcommittees in the Democratic caucus.[37] Bolling, the putative institutionalist who favored centralization, accused Burton of having the “damn fool idea that getting something done [is] more important than the process of democracy real to people.”[38] Burton, who sought to divert power to subcommittees (where more junior and more liberal members could exercise greater influence over policy), accused Bolling of being a “white collar liberal” whose “interest in rules blinded him to the importance of winning policy victories.”[39]
The period’s reforms—cameras in committee rooms, increased use of the legislative veto (prior to its eradication by the Supreme Court)[40], sunset provisions requiring congressional reauthorization of programs, and appropriations riders allowing members to exercise greater control over spending among them—certainly increased the level of activity in Congress.[41] But by trying to focus on everything, Congress in fact ended up focusing on little more than performative process and hollow outcomes that laid the groundwork for members of Congress to “run[] for Congress by running against Congress,”[42] what came to be known as “Fenno’s paradox.”[43]
Implicit in much of Wallach’s argument is the idea that, when functioning at its fullest potential, Congress gives Madisonian factions skin in the game—an incentive to play ball rather than complain (and grandstand and fundraise) from the sidelines. By its nature, Congress requires broad buy-in to succeed.[44] Absent those incentives, Congress does the bare minimum to keep the lights on and the trains running: appropriating money and delegating broad swaths of authority to the executive branch through eleventh-hour deals negotiated by party leaders absent meaningful debate.[45] That dynamic fuels a vicious cycle. The more power delegated, the less pressure on Congress to act, the more pressure on presidential administrations to stretch that power to (perhaps even beyond) its limits, the more contentious issues inevitably end up in the courts whose rulings—generally on questions of procedure and constitutional structure—are refracted through the lens of policy outcomes, which is understandable (if not excusable) given the dearth of meaningful policy making efforts elsewhere in the federal government. Wallach walks through this story in the area of immigration,[46] but it is hardly limited there. Environmental regulation, where a recent iteration of this cycle birthed a more robust rejoinder from the Supreme Court in the form of the major questions doctrine,[47] is another example.
One response to these dynamics is resignation. This vision treats presidential elections as the ultimate expression of public opinion, the Supreme Court as the final site for political contestation, and Capitol Hill largely as a fancy building for press conferences by legislators seemingly powerless to do anything but lobby the administration, litigate in the courts, and raise money—lots of money.[48] Wallach calls that vision decrepitude, and he acknowledges (somewhat ruefully) that it is the current course.[49] Another response, surrender (which has some proponents on the right and on the left), would shift our attention to the executive branch, perhaps with some form of administrative process replacing legislative process as a legitimating force for public policymaking.[50] In this vision, conspicuous failure in the form of government shutdowns or debt ceiling disasters would eventually lead to some degree of congressional reform that puts the functioning of government on autopilot with the day-to-day levers pulled by the president.[51] This system would have some echoes of parliamentary democracy, but as Wallach warns, would short-circuit the deliberative work that legislatures can achieve.[52]
Unsurprisingly, Wallach favors a third path he calls “revival.”[53] Resting on a coup against party leadership, internal organizing by congressional moderates, and substantial investments in the legislature’s staff capacity, the path to this revival that Wallach outlines is somewhat fanciful (as he acknowledges).[54] But it is worth taking this vision seriously on its own terms. To sustain a body capable of working through the pressing challenges of the day, Wallach argues that Congress will need to be willing to let go of minor ones (which he concedes is at odds with many of his fellow conservatives’ prescriptions).[55] Messy though it may be, Wallach argues such revival will have a salutary effect: “[T]hrough Congress’ deliberations, we come to feel that the country’s future is ours.”[56] That is the essence of “why Congress.”[57]
II. Bernhardt
David Bernhardt seeks to answer a different question, though one connected and no less important to the structural separation of powers. A longtime official in the Department of Interior who rose from aide in the administration of George W. Bush to secretary in that of Donald Trump, Bernhardt offers his take on the role of executive branch officials in our system of government. The book’s title—a reference to his first conversation with President Trump upon becoming Secretary of the Interior in 2019—provides at least part of his answer: officials in the executive branch report to and serve at the pleasure of the elected president.[58] The other part of his answer emerges in various examples throughout the remainder of the book: the text of statutes.[59] Taken together, Bernhardt’s answer is consistent with a classic exposition of the unitary executive theory, that all executive power is vested in a president whose agents discharge whatever discretion the faithful execution of the law allows in his name (and must do so in accordance with his wishes).[60]
And if the book stopped there, it would be unoffensive and useful enough, as these sorts of policy memoirs go, if a bit prosaic. Where Bernhardt makes a real contribution, however, is with his apparent audience. This book is written as a field guide for public servants in a future presidential administration that takes the rule of law seriously and wants to implement a president’s agenda effectively. Peppered with anecdotes from his time in government service, Bernhardt’s book provides a first-hand account of how administrative agencies work on the ground. Although it offers a whirlwind tour that bounces from administration to administration and incident to incident with asides that do not always seem central to its argument,[61] You Report to Me nevertheless provides a useful introduction to administrative law for those not already steeped in the subject and would be well-placed on the bookshelves of those charged with implementing an administration’s policy program.
Successive chapters walk through the basics of delegation,[62] agency adjudication,[63] judicial deference,[64] presidential directive authority,[65] and the removal power.[66] Written in plain English with limited (though sufficient) legalese, the chapters provide a useful primer on the constitutional principles, case law, and statutes that shape each area. But just as valuable are anecdotes nestled within the chapters that illuminate how agencies actually operate day to day.
For example, Bernhardt discusses the practice of “sue and settle,” in which outside groups sue an agency for something like missing a statutory deadline and an agency—rather than litigate the issue to judicial resolution—enters a consent decree committing to a set of actions in exchange for ending the lawsuit.[67] Sounds innocent enough. And as Bernhardt acknowledges, “entering a consent decree or settlement agreement can be a prudent use of taxpayer resources, avoiding costly, drawn-out litigation that an agency is likely to lose.”[68] But as Bernhardt explains, so many agencies miss so many deadlines and benchmarks that their entire regulatory agendas can be driven by negotiation with litigants rather than the traditional notice-and-comment rulemaking process.[69] Sometimes, such suits can even be collusive, allowing an agency to “tie its hands” to an unpopular position through litigation to evade political accountability.[70] This under-the-radar practice bears on the structural separation of powers along the same dimension as higher profile issues like the president’s authority to remove agency heads,[71] and Bernhardt effectively links the issues in his larger quest to explain how government operates.
Bernhardt closes with a chapter on “driving change as a political appointee” that lays bare the true purpose of the book: coaching a future administration to cut through bureaucratic inertia and effect policy change.[72] To his credit, from explaining in gory detail the differences between political appointees requiring Senate confirmation, Schedule C and noncareer Senior Executive Service advisory positions, and the career civil service to advising agency “beachhead teams” at the start of a new administration to secure control of an agency’s Executive Resources Board, Bernhardt remains laser-focused on authority within the law.[73] And although he makes rather fine distinctions between the verve with which he encourages future administration officials to search for legal authority and the skepticism with which he treated an effort by the Biden administration’s Bureau of Land Management to identify new ways to fight climate change,[74] the importance of good judgment and forbearance shines through his admonition that the law—rather than policy preferences—must act as an agency’s ultimate restraint: “Appointees must try to provide their superiors with unbiased, intellectually honest advice regarding their options under the law. The president’s preferred policy outcomes can usually be achieved in various ways, but in the unlikely event that Congress has not delegated authority to the agency to take the president’s preferred ctionn, political appointees should make that fact clear to their superiors and suggest how such authority could be gained.”[75]
Article II, Section 3 of the Constitution requires the president to “take care that the laws be faithfully executed.” Bernhardt closes by calling attention to the word “faithfully” as it is used in a different context, the oath of office taken by all federal officials except the president.[76] In both cases, the word highlights the fidelity to one’s role that Bernhardt argues ought to animate the whole executive branch: Congress passes laws, the president decides how to implement those laws, and administrative agencies execute the president’s command within the bounds of those laws. Therefore, in our republic, Bernhardt writes, all administration officials “report to you and me.”[77]
III. Thapar
Fidelity to role is an overarching theme in The People’s Justice too.[78] Written by Judge Amul Thapar, who joins a coterie of his Sixth Circuit colleagues in authoring recent books,[79] the importance of this tribute to Justice Clarence Thomas lies not in breaking new doctrinal ground, nor revealing new biographical details about Justice Thomas, nor even in synthesizing Justice Thomas’s jurisprudence in a new way. Rather, The People’s Justice stands for the simple proposition that the Constitution belongs to all of us. And although the judiciary is not a representative body, Judge Thapar argues forcefully that respect for the Constitution’s original meaning—as ratified by the people’s representatives and reflected in Justice Thomas’s brand of originalism—tends towards outcomes that promote human flourishing.
Judge Thapar’s story unfolds in twelve chapters, each discussing an opinion authored by Justice Thomas (all of which, intriguingly, happen to be concurrences or dissents).[80] What makes the book unique among works that self-consciously promote originalism[81] is Judge Thapar’s unapologetic invocation of the stories of the individuals who were characters in what reached the Supreme Court as “cases and controversies” and the consequences of the Court’s decisions.[82] In Judge Thapar’s telling, although Justice Thomas “is committed to applying the law equally to all, come what may,” more often than not, that orientation means his rulings will favor “the ordinary people who come before the Court—because the core idea behind originalism is honoring the will of the people.”[83] The purpose of the book is not to test that proposition empirically. But in highlighting numerous cases in which convoluted court-created doctrine departs from how Justice Thomas understands the Constitution’s original meaning,[84] The People’s Justice serves as a useful corrective to accounts of originalism as subterfuge to serve special interests.[85] Rightly considered, originalism prevents special interests (or interests of any other kind) from “usurp[ing] power from the people” in whose name our Constitution was adopted unless and until they decide to change it themselves.[86]
One particularly moving chapter in Judge Thapar’s book tells the stories of Betty Smothers and her son, Warrick Dunn. Early in the morning on January 7, 1993—just two days after Dunn turned eighteen—Betty, an off-duty police officer, was murdered while working a second job as a security guard.[87] The oldest of six siblings, Warrick, a star high school running back who would go on to play at Florida State and later in the NFL, was “thrust into the role of father to his five younger siblings.”[88] Twenty-two years and a trail of state and federal appeals later,[89] the Supreme Court held in Brumfield v. Cain[90] that the state court that had sentenced Betty’s killer to death had made unreasonable factual findings about his mental capacity when determining that his death sentence did not violate the Court’s ruling in Atkins v. Virginia.[91]
Justice Thomas dissented.[92] In his view, the record before the state habeas court—all the way back in 2003—supported the judge’s finding that Brumfield was not intellectually disabled.[93] To rule for Brumfield, Justice Thomas wrote, the majority took “a meritless state-law claim, recast it as two factual determinations, and then award[ed] relief despite ample evidence in the record to support each of the state court’s actual factual determinations.”[94] Justice Thomas’s opinion also described Warrick Dunn and the crime’s impact on his life; Justice Thomas’s dissenting colleagues did not join that part of the opinion, which Justice Alito wrote in a separate dissent “is inspiring and will serve a very beneficial purpose if widely read” but is not “essential to the legal analysis in this case.”[95]
Judge Thapar frames this case as an example of the attention Justice Thomas pays to victims of crimes.[96] But how Justice Thomas pays attention to the rights of victims of crimes is key. He did not go searching in the Constitution’s interstices for lurking “penumbras” or “emanations” that might give rise to an unenumerated, substantive right.[97] Rather, Justice Thomas let the structural separation of powers—especially the vertical separation of powers inherent in our federal system—do the work. Federal habeas review of state court convictions, Justice Thomas explained, is a final backstop and imposes an intentionally high standard.[98] Why? For one thing, states are a separate sovereign.[99] Although state criminal proceedings must comply with incorporated federal rights, federal courts generally have no supervisory role over state courts; they adjudicate claims on behalf of a different sovereign, the United States. But Congress defined a limited exception. Through the habeas statute, federal law defines limited circumstances when federal courts may review state court convictions.[100] Part of what offended Justice Thomas about the majority’s ruling in Brumfield was the majority’s decision, in his view, to “toss[] [the state court] proceedings aside, concluding that the state court based its decision to deny Brumfield’s Atkins claim on an ‘unreasonable determination of the facts,’ even as it concede[d] that the record include[d] evidence supporting that court’s factual findings.”[101]
Justice Thomas’s concerns about federal habeas proceedings extending beyond what the statute permits transcend Brumfield. Just last November, he dissented from the denial of certiorari in Shoop v. Cunningham,[102] in which the Sixth Circuit had granted an evidentiary hearing “on the mere possibility that it might turn up some kind of admissible evidence supporting some sort of cognizable claim.”[103] Echoing his opinion in Brumfield, Justice Thomas pointed to real costs of breaching structurally separated powers: “It shows profound disrespect, not merely to the State, but to citizens who perform the difficult duty of serving on capital juries, to the surviving victims of Cunningham’s atrocious crimes, to the memories of the two young girls whose lives he snuffed out, and to their families who still, two decades later, have no assurance that justice will ever be done.”[104]
As Judge Thapar points out in the conclusion of the book, sometimes Justice Thomas’s originalism leads him to rule for criminal defendants, even when his conservative colleagues do not join him.[105] If Justice Thomas were Senator Thomas, he might not vote for some of the outcomes his opinions have reached.[106] But as Judge Thapar argues, “[Justice Thomas] knows, like all originalists, that you cannot fully respect a people unless you respect their choices, too. For that reason, Justice Thomas enforces the Constitution as the American people created it. He understands that ours isn’t just a Constitution for the people. It’s a Constitution by the people. So Justice Thomas sees his job as a humble one: to try his best to figure out what the American people understood the Constitution to mean when they ratified it.”[107] That orientation, Judge Thapar posits, is why, when Justice Thomas autographs a copy of the Constitution, he writes, “This is your Constitution.”[108] Because it is.
***
All three of these books center institutions, but they also center the role of people and, perhaps most fundamentally, “the people”—the sovereign actors in whose name this union formed—in doing the work of governing in our constitutional system. To some degree, all three books paint an idealized portrait of how the institutions and those who operate within them ought to behave. Well over two centuries into this constitutional order, we are not working on a blank canvas. But returning to the first principles of Congress, the executive, the courts, and federalism—as these books invite—yields several important insights.
First, in our Constitution, articles preceded amendments.[109] Our Constitution delineates the structure of our government before it delineates the substantive rights that government may not abridge. In a republic like ours, the process of self-government is a substantive outcome. Sure, extraconstitutional means may produce short-term solutions, but short-circuiting the process that the Constitution designed not only tends to fail to develop the durable consensus to which lasting policy solutions are anchored,[110] it also erodes the perceived utility in following (or the perceived capacity of) the Constitution’s process the next time.[111] That doom loop undermines the notion of representative self-government—the processes inherent in the structural separation of powers are, for now, part of “our law.”[112]
But their status is contested. And their normative value is not always obvious, especially to those who spend their days doing more than thinking about legal theory. Modern originalism centers how the people understand the law. [113] The modern conservative legal movement, meanwhile, traces its origins to three elite law schools: Harvard, Chicago, and a third one that need not be named.[114] Ironically, then—but perhaps unsurprisingly—ordinary citizens have not always been the target for explanations about why originalism, particularly in the separation of powers context, matters to daily life. That is a problem.
And responding effectively to hyperbolic attacks on the legitimacy of constitutional institutions (namely, the Supreme Court)[115] requires more than mere assertions about the system working like it is supposed to; explanations must explain why the system is supposed to work that way.
All three of these books help develop such explanations that can resonate beyond the legal academy. For example, Wallach explains the connection between actually legislating and developing social trust.[116] Bernhardt shows the pitfalls of executive agencies freelancing beyond their statutory authorization.[117] Judge Thapar disentangles the process of judging from its substantive outcomes.[118] Taken together, all three authors shed light on why politics operating short of our constitutional order can simultaneously feel hollow and chaotic.[119] Put more simply, the authors explain what our institutions are good for and why we might want to preserve them.
The essence of a legitimate institution is one where you can lose, move on, and live to fight another day, trusting that you got a fair shake and believing that continued engagement in the republic is better than all alternatives.[120] Keeping a republic depends on institutions that durable majorities see as legitimate.
***
I opened this essay with that famous story about Benjamin Franklin. But I left out a major character: Franklin’s interlocutor. Her name was Elizabeth Willing Powel.
According to the journal of Maryland delegate James McHenry, Powel asked Franklin: “Well Doctor, what have we got—a republic or a monarchy?”[121]
Born in Philadelphia and the daughter of the mayor, Powel was one of eleven children.[122] Beginning with the First Continental Congress in 1774, Powel and her husband Samuel opened their home to delegates and hosted frequent dinner parties and salons to discuss the issues of the day.[123] As a librarian at Mount Vernon (home to one of her frequent correspondents, George Washington), notes, “She was a political power player, in a time when women were not supposed to be involved with politics. Although she could not run for office, she used her home as her public stage, situating herself at the center of a robust network of powerful individuals. As her 1830 obituary would note, Powel had a ‘mind cast in an unusual mold of strength and proportion,’ which drew people to her home for conversation and entertainment.”[124]
During the Revolutionary War, British soldiers commandeered her home.[125] The destruction of Philadelphia during the war appears to have left a lasting impression.[126] By the time of the Constitutional Convention, Powel had resumed her hosting duties, witnessing lengthy and weighty deliberations on what the newly independent states were to become in the lead-up to her climactic conversation with Franklin.[127]
By the final day of the Constitutional Convention in September 1787, it seems safe to conclude that Powel had been a deeply informed observer.[128] So it likewise seems safe to assume that the question she asked was truly what was on her mind—would this new country be a monarchy or a republic? Her question was about process. Her home having been seized during the war, she understood the stakes of sovereignty. Who would decide to what laws Americans would be subject?[129] The people, through their elected representatives. The Constitution guaranteed that to her and to us—if only we keep it.
I hope you’ll join us next March in Cambridge to discuss how we might.
* J.D. 2024 (expected), Harvard Law School; President of the Harvard Federalist Society. He speaks only for himself. The author thanks Tom Koenig, Ben Rolsma, and Adam White as well as Per Curiam editors Marcos Mullin and Joel Erickson for advice and thoughtful feedback.
[1] This assertion is the first, though maybe not the last, for which that disclaimer about the author speaking only for himself is necessary.
[2] Neil Gorsuch, A Republic, If You Can Keep It (2019).
[3] Transcript of Pelosi Weekly Press Conference Today, House.Gov (Sep. 26, 2019) https://pelosi.house.gov/news/press-releases/transcript-of-pelosi-weekly-press-conference-today-43 (“Article II does not make anyone a king. That’s exactly what our Founders avoided. So said Benjamin Franklin when he came out on the Independence Hall steps, and they said, ‘Dr. Franklin, what do we have, a monarchy or a Republic?’ He said, ‘A Republic, if we can keep it.’”).
[4] See, e.g., Adam J. White, A Republic, If We Can Keep It, The Atlantic (Feb. 4, 2020) https://www.theatlantic.com/ideas/archive/2020/02/a-republic-if-we-can-keep-it/605887/; Michael Kimmage, A Republic, If You Can Keep It, Am. Purpose (Jul. 11, 2023); Richard R. Beeman, Perspectives on the Constitution: A Republic, If You Can Keep It, National Constitution Center. https://constitutioncenter.org/education/classroom-resource-library/classroom/perspectives-on-the-constitution-a-republic-if-you-can-keep-it.
[5] See generally Federalist No. 47.
[6] See U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
[7] See U.S. Const. arts. I, II & III.
[8] Though our republic would quite likely be healthier if we leaned into Schoolhouse Rock’s civic-minded spirit.
[9] William Baude & Stephen Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 812 (2019). Other scholars, no less thoughtful, would push harder on “lawfully” than others to argue that legitimate changes in legal process can lead to legitimate change to substantive law. See, e.g., Richard Fallon, Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. Rev. 1107 (2008) (arguing that non-originalist precedent, for example, can attain the status of binding law through ongoing practice); cf. William Baude, Constitutional Liquidation, 71 Stanford L. Rev. 1 (2019) (envisioning a more limited role for the evolution of constitutional meaning through historical practice in the face of textual indeterminacy).
[10] See, e.g., Jud Campbell, General Citizenship Rights, 132 Yale L.J. 611, 696–97 (2023).
[11] See Stephen Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 839 (2015).
[12] See e.g., Tyler v. Hennepin County, 598 U.S. 631 (2023); National Pork Producers v. Ross, 143 S. Ct. 1142 (2023).
[13] The Federalist No. 51 (James Madison).
[14] Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).
[15] Cf. Jeffrey Sutton, Administrative Law in the States: An Introduction to the Symposium, 46 Harv. J.L. & Pub. Pol’y 307 (2023).
[16] Philip Wallach, Why Congress 1 (2023).
[17] Id. at 3.
[18] Id. at Chapters 2–3.
[19] Id. at Chapters 4–6.
[20] Id. at Chapters 7–8.
[21] Compare Beau Baumann, Americana Administrative Law, 111 Georgetown L.J. 466 (2023) (accusing conservative judges, in particular, of “deploying cynical and declinist notions of Congress to justify judicial self-aggrandizement”), with Simon Bazelon & Matt Yglesias, The Rise and Importance of Secret Congress, Slow Boring (Jun. 21, 2021) https://slowboring.com/p/the-rise-and-importance-of-secret (arguing that out of the spotlight, Congress remains remarkably effective in passing bipartisan legislation on lower-salience issues).
[22] Wallach, supra note 16, at Chapters 9–11.
[23] Id. at 47.
[24] See e.g., id. at 55 (“[W]e can acknowledge that Congress was obliged to endow the executive with unprecedented power without supposing that the questions of how it should do so were obvious or trivial. Congress needed to fashion a regime that was potent but still accountable, capable of beating back hostile empires without itself becoming imperious.”)
[25] See, e.g., Jon Meacham, The Soul of America: The Battle for Our Better Angels (2019).
[26] Wallach, supra note 16, at 70.
[27] See id. at 71–72; 88; see also id. at 72 (“For those 21st-century readers who regard racism as the worst sin imaginable, this forbearance may seem like something to be ashamed of. Such an absolutist position is fundamentally anti-democratic and insensitive to the value of social peace.”).
[28] 347 U.S. 483 (1954).
[29] Wallach, supra note 16, at 88–90; accord. Justin McCarthy, U.S. Approval of Interracial Marriage at New High of 94%, Gallup (Sep. 10, 2021) https://news.gallup.com/poll/354638/approval-interracial-marriage-new-high.aspx (noting that from 1958 until 2021, the percentage of the American public expressing approval of marriage between Black people and white people rose from 4% to 94%).
[30] Id. at 82.
[31] Id. (citing Julian Zelizer, Fierce Urgency of Now 120 (2015)).
[32] Id. at 88.
[33] Id. at 88–89.
[34] Wallach, supra note 16, at 93.
[35] Id. at 225.
[36] Id. at 130; 140; 244. On the Wilsonian critique of Congress, see id. at 30–42.
[37] Id. at 102.
[38] Id.
[39] Id.
[40] Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
[41] Wallach, supra note 16, at 113–14; 117.
[42] Id. at 119.
[43] See generally Richard Fenno, Home Style: House Members in Their Districts (1978).
[44] Cf. James Curry & Frances Lee, Non-Party Government: Bipartisan Lawmaking and Party Power in Congress, 17 Perspectives on Politics 47 (2019) (observing that the coalitions that have supported major legislation are just as bipartisan in the 2010s as they were in the 1970s).
[45] Wallach, supra note 16 at 149; 173.
[46] Id. at 189–90.
[47] See West Virginia v. EPA, 597 U.S. __ (2022).
[48] Wallach, supra note 16, at 227.
[49] Id. at 228.
[50] See, e.g., William Howell & Terry Moe, Relic: How Our Constitution Undermines Effective Government and Why We Need a More Powerful Presidency (2016); Adrian Vermeule, Common Good Constitutionalism (2022).
[51] Wallach, supra note 16, at 238–39.
[52] Id. at 244–45; 247.
[53] Id. at 251.
[54] Id. at 255.
[55] Id. at 260 (citing James Burnham, Congress and the American Tradition 347 (1959)).
[56] Wallach, supra note 16, at 262.
[57] Id. at 263.
[58] David Bernhardt, You Report to Me: Accountability for the Failing Administrative State 2 (2023).
[59] See, e.g., id. at 10.
[60] See, e.g., Myers v. United States, 272 U.S. 52 (1926).
[61] E.g., mocking a Fish and Wildlife Service (FWS) employee who reported that her job was to “speak for the mice,” see Bernhardt, supra note 58, at 139; four pages to explain his disagreement with a memo written by a different FWS employee about the status of the Northern Spotted Owl, see id. at 49–53; a two-paragraph aside condemning Dr. Deborah Birx, the “career bureaucrat who was selected to coordinate the Trump administration’s coronavirus response,” for circumventing elected officials and their designees that seemed a bit gratuitous in a chapter about accountability for the civil service that had made its point long before, id. at 46.
[62] Id. at 49.
[63] Id. at 79.
[64] Id. at 97.
[65] Id. at 115.
[66] Id. at 139.
[67] Id. at 108–10.
[68] Id. at 109.
[69] Id. (citing Jamie Conrad, We Shouldn’t Dismiss ‘Sue and Settle’ – or Other Regulatory Problems, Reg. Rev. (May 18, 2015), https://www.theregreview.org/2015/05/18/conrad-sue-and-settle/).
[70] Cf. Arizona Grocery v. Atchison, Topeka & Santa Fe Railway, 284 U.S. 370 (1932).
[71] See generally Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020) (holding that limitations on the president’s ability to fire an agency head unconstitutionally limits his ability to discharge the executive power).
[72] Bernhardt, supra note 58, at 173.
[73] See id. at 178; 182.
[74] Compare id. at 190, with id. at 74.
[75] Id. at 190. But cf. Remarks by President Biden on Fighting the Covid-19 Pandemic, The White House (Aug. 3, 2021) https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/08/03/remarks-by-president-biden-on-fighting-the-covid-19-pandemic/ (President Biden announcing the extension of an eviction moratorium despite acknowledging that “the bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster” but hoping that the moratorium would have a salutary effect until there was time for a court to say so).
[76] See 5 U.S.C. § 3331 (“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”)
[77] Bernhardt, supra note 58, at 211.
[78] Amul Thapar, The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him (2023).
[79] See, e.g., Jeffrey Sutton, Who Decides? States as Laboratories of Constitutional Experimentation (2022); Jeffrey Sutton, Fifty-One Imperfect Solutions: States and the Making of American Constitutional Law (2018); Raymond Kethledge & Michael Erwin, Lead Yourself First: Inspiring Leadership Through Solitude (2017); John K. Bush, Should We Cancel the Founders? (forthcoming).
[80] In order, those cases and opinions are: Kelo v. City of New London, 545 U.S. 469 (2005) (Thomas, J., dissenting); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (Thomas, J., concurring); Grutter v. Bollinger, 539 U.S. 306 (2003) (Thomas, J., concurring in part and dissenting in part); Gonzales v. Raich, 545 U.S. 1 (2005) (Thomas, J., dissenting); Doe v. United States, 593 U.S. __ (2021) (Thomas, J., dissenting from denial of certiorari); McKee v. Cosby, 586 U.S. __ (2019) (Thomas, J., concurring in the denial of certiorari); Brumfield v. Cain, 576 U.S. 305 (2015) (Thomas, J., dissenting); City of Chicago v. Morales, 527 U.S. 41 (1999) (Thomas, J., dissenting); McDonald v. City of Chicago, 561 U.S. 742 (2010) (Thomas, J., concurring in part and concurring in the judgment); Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) (Thomas, J., dissenting); State Farm v. Campbell, 538 U.S. 408 (2003) (Thomas, J., dissenting); Virginia v. Black, 538 U.S. 343 (2003) (Thomas, J., dissenting).
[81] See Thapar, supra note 78, at XVIII.
[82] See U.S. Const. art. III, § 2, cl. 1.
[83] Thapar, supra note 78, at XXI.
[84] On how Justice Thomas evaluates the original meaning of the Constitution, see Gregory Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas? 4 N.Y.U. J.L. & Liberty 494 (2009).
[85] See, e.g., Michael Waldman, Supermajority: How the Supreme Court Divided America 184; 267 (2023); Eric Segall, Originalism As Faith (2018).
[86] Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74; cf. Baude & Sachs, supra note 9.
[87] Thapar, supra note 78, at 108–09.
[88] Id. at 110.
[89] Kevan Brumfield was convicted by a jury that unanimously recommended the death penalty after finding three aggravating factors. See Brumfield v. Cain, 576 U.S. 305, 330 (2015) (Thomas, J., dissenting). He went on to appeal his conviction in state court on direct appeal, Thapar supra note 78, at 112, and then, in 2003, filed his first amended habeas petition, raising, in light of the Supreme Court’s intervening ruling in Atkins v. Virginia, 536 U.S. 304 (2002), that he was mentally disabled and thus ineligible for the death penalty, id. at 113. The state court denied his petition, finding insufficient facts to support his claim of disability. Id. He then filed a federal habeas petition in 2004. See Brumfield v. Cain, 854 F. Supp. 2d 366, 372 (M.D. La. 2012). Six years later, the federal court held an evidentiary hearing. Id. Eighteen months after that, a federal district court ruled that the state court had denied Brumfield’s Adkins claim based on an unreasonable determination of facts and had incorrectly applied clearly established Supreme Court precedent in failing to provide funds to Brumfield to develop his claim. See Brumfield, 576 U.S. at 333–34 (Thomas, J., dissenting) (summarizing the procedural history). The Supreme Court ruled in 2015, and a resentencing hearing—in which Brumfield was sentenced to life in prison without parole—occurred in 2016. Thapar, supra note 78, at 120.
[90] 576 U.S. 305 (2015).
[91] 536 U.S. 304 (2002) (holding that the Eighth Amendment prohibits the execution of mentally disabled individuals).
[92] Brumfield v. Cain, 576 U.S. 305, 324 (2015) (Thomas, J., dissenting).
[93] Thapar, supra note 78, at 119.
[94] Id. (quoting Brumfield, 576 U.S. at 342 (Thomas, J., dissenting)).
[95] Brumfield, 576 U.S. at 350 (Alito, J., dissenting).
[96] Thapar, supra note 78, at 118.
[97] Cf. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”)
[98] Brumfield, 576 U.S. at 343 (Thomas, J., dissenting).
[99] See id. (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)).
[100] Id. at § 2254(d).
[101] Brumfield, 576 U.S. at 349 (Thomas, J., dissenting).
[102] 598 U.S. __ (2022).
[103] Id. Slip Op. at 12 (Thomas, J., dissenting).
[104] Id. Slip Op. at 13 (Thomas, J., dissenting).
[105] See, e.g., Alleyne v. United States, 570 U.S. 99, 103 (2013) (holding that the original meaning of the Sixth Amendment requires that any fact that, by law, increases the penalty for a crime must be found by a jury).
[106] Judge Thapar suggests that Gonzales v. Raich, discussed in pp. 67–86, might be an example. Thapar, supra note 78, at 213.
[107] Id. at 211.
[108] Id. at 214.
[109] I owe this construction to Judge Patrick Bumatay, who told attendees at the 2023 Federalist Society National Student Symposium that one of his favorite clerkship interview questions is “articles or amendments?”
[110] See, e.g., Wallach, supra note 16, at 90–93.
[111] See, e.g., Bernhardt, supra note 58, at 198 (recalling a conversation with a senator who told him that an issue was “too complicated for Congress to deal with” and, after Bernhardt responded that it was Congress’s job to “mak[e] complicated policy decisions,” agreed that “Congress really should act . . . [but would not] until the political need to act was more acute”).
[112] Cf. Baude & Sachs, supra note 9, at 812; William Baude, Is Originalism Our Law? 115 Colum. L. Rev. 2349 (2015).
[113] See generally Thapar, supra note 78, at 211.
[114] Cf. Kyle Swanson, At Hill, Chief Justice Roberts Offers Advice, Laughs, Mich. Daily (Sept. 13, 2009) https://www.michigandaily.com/uncategorized/hill-chief-justice-roberts-offers-advice-laughs/ (Chief Justice Roberts, responding to a question about Supreme Court justices attending elite institutions, observing, “Not all of the justices went to elite institutions; some went to Yale.”)
[115] See, e.g., Aaron Belkin & Mark Tushnet, An Open Letter to the Biden Administration on Popular Constitutionalism, Balkinization (July 19, 2023) https://balkin.blogspot.com/2023/07/an-open-letter-to-biden-administration.html (condemning “MAGA justices” and urging the Biden administration to pursue “popular constitutionalism” in response); see also Thomas Koenig, The Incoherence of Illegitimacy, The Dispatch (July 15, 2023) https://thedispatch.com/article/the-incoherence-of-illegitimacy/ (criticizing attacks on the Supreme Court’s legitimacy as conceptually confused).
[116] See, e.g., Wallach, supra note 16, at 40–42.
[117] See, e.g., Bernhardt, supra note 58, at 52–53.
[118] See, e.g., Thapar, supra note 78, at 211–14.
[119] See, e.g., Jason Bivins, Embattled America: The Rise of Anti-Politics and America’s Obsession with Religion (2022); Colin Hay, Why We Hate Politics (2007); Jonathan Rauch, How American Politics Went Insane, The Atlantic (July 2016) https://www.theatlantic.com/magazine/archive/2016/07/how-american-politics-went-insane/485570/.
[120] Cf. James Gibson, Legitimacy Is for Losers: The Interconnections of Institutional Legitimacy, Performance Evaluations, and Symbols of Judicial Authority, in Motivating Cooperation and Compliance with Authority: The Role of Institutional Trust, Brian Bornstein & Alan Tomkins (eds.), 81 (2015).
[121] James McHenry, Diary: September 18, 1787, Library of Congress (manuscript division), https://www.loc.gov/exhibits/creating-the-united-states/convention-and-ratification.html#obj8.
[122] See David W. Maxey, A Portrait of Elizabeth Willing Powel, 96 Transactions of the American Philosophical Society 3, 15–16 (2006).
[123] Samantha Snyder, The Influencer, 6 Mount Vernon Magazine 18 (2020) https://magazine.mountvernon.org/2020/Winter/the-influencer.html.
[124] Id.
[125] Maxey, supra note 122, at 24–25.
[126] Id. at 25.
[127] Id. at 30.
[128] See Elizabeth Willing Powel, Mount Vernon Digital Encyclopedia, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/elizabeth-willing-powel/ (citing Elizabeth Willing Powel to Martha Hare, 25 April, 1814, Powel Family Papers, Historical Society of Pennsylvania).
[129] Cf. Wallach, supra note 16, at 23 (“But again, their objections to ‘a long train of abuses and usurpations’ revolved as much around their insufficient protection through representation as around their objections to particular policies.”)
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Posted by arispitzer on Jul 20, 2022 in Per Curiam
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What Originalism Must Take from the Common Good
Jameson M. Payne*
I. Introduction
On May 29th, 1919, British researchers operating out of Principe and Sobral, Brazil, tested a simple proposition: whether, during that day’s total eclipse, the light of stars proximate to the sun would be deflected, thus distorting their observed position in the night sky. The proposition was proven correct, and, in November of 1919, the results were reported in global news. The British researchers were Sir Arthur Eddington and Sir Frank Watson Dyson,[1] and their experiment was designed to prove the validity of Einstein’s theory of general relativity. Proven it was, humanity’s previous “Newtonian Ideal” was overthrown. The world was never the same again.
Like physics in the 20th century, so too comes the conservative constitutional conversation to a crucible. In wake of the Supreme Court’s ruling in Bostock v. Clayton County[2]—a vast expansion of Title VII justified as an exercise in textualism—many prominent conservative thinkers have taken to assailing the legitimacy of originalism as a means of upholding our rule of law (or, alternatively, as a means of guaranteeing conservative prerogatives).[3] The nigh-unanimous laudation of originalism that has been enjoyed in conservative legal circles for the past three decades has experienced an unprecedented level of disruption and cynicism. The question that now rears its head is such: will the “Originalist Ideal” too be overthrown?
No matter the answer, originalism must spar with its formidable right-wing challenges. In this spirit of discourse over obstinacy, conservative channels like the Harvard Journal of Law & Public Policy have circulated such essays as “Common Good Originalism: Our Tradition and Our Path Forward” by Josh Hammer[4] and “Myths of Common Good Constitutionalism” by Conor Casey and Adrian Vermeule.[5] These, however, fail to compare to the true chef d’oeuvre of anti-originalism: Common Good Constitutionalism, a systematic, anti-originalist account of jurisprudence by Adrian Vermeule.[6]
Vermeule took originalism to task even before Bostock exacerbated these fault lines. Months before the decision was released, his piece in The Atlantic[7] called for the abandonment of originalism—a philosophy he deemed as having “outlived its utility”—and for it to be replaced by what he calls “common-good constitutionalism.” This philosophy is cabined in the notion that “government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”[8]
In Common Good Constitutionalism, Vermeule lays an analytic and normative defense for a theory that he argues is premised in the ancient notion of ius—a body of law, albeit containing lex (written law)—that encapsulates the principles of natural justice and thus orients society towards the vector of “common good.” He heavily contrasts this to both originalism and living constitutionalism: the former he asserts is analytically deficient and fails to account for the various Dworkinian problems of “abstraction” that plague positivism; the latter he asserts as being an engine towards a “mythology of endless human liberation.”[9]
Many pages could be spent criticizing this book in detail; indeed, some are already doing just that.[10] I think, however, that what the book gets correct is of vastly greater utility to originalists, such as myself. Originalists cannot and should not delve into line-by-line philippic to evade the many important—and, yes, valid—criticisms that Vermeule offers against originalism.
Common Good Constitutionalism offers a strong injunction: “The truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.”[11] I believe that this unalloyed command for common good constitutionalism cannot be sustained. Rather, I will be arguing that a reconciliation of these two philosophies is not only highly desirable but in fact necessary. Despite Professor Vermeule’s reproach of such “hybrid theories,” the normative posture of common good constitutionalism offers a vital strength to buttress originalism, a strength that has been lost upon some (but certainly not all) aspects of the discourse within originalist spheres.
My essay is organized as follows. First, I endeavor to offer a brief sketch of common good constitutionalism’s high points, along with the balance that originalism brings to the table. The rest of the essay will be dedicated to a tripartite conclusion: 1) The need for a moral-political justification of originalism; 2) The need for originalists to abjure “living originalism” where it is found and to critique it on normative grounds; and 3) The integration of originalism into the higher-level theory of morality upon which it resides.
II. What’s Good about Common Good?
The common good’s strength is in its admission of moral and political normativity. Contained in inconspicuous endnote thirty-four of the book, Vermeule notes that “the leading theoretical defenses of originalism are explicitly positivist.”[12] Key to his criticism of modern originalism is the notion that positivism fails to sustain an internal logic of decision-making and can lead to such jarring consequences as Bostock. I agree with this assessment but will attempt to demonstrate that originalism can be revived under a fully moral framework.
Chapter 3, “Originalism as Illusion,” explains the downfall that positivism spells for originalism. The posture he takes in this analysis is explicitly Dworkinian in flavor. As he notes,
Dworkin observed that originalism is committed to “public meaning,” but that “public meaning” is itself ambiguous, and that originalist judges and other interpreters constantly toss uneasily between the two accounts of meaning; the choice between them can only be made, explicitly or implicitly, on the basis of normative principles of political morality.[13]
I will not try to reconstruct in excruciating detail the minutiae of the argument; it suffices to demonstrate the point through illustration. To this end, Vermeule segues to Bostock, where he counterposes the so-called “expected applications” originalism that undergirds the logic of Justice Kavanaugh’s dissenting opinion in contrast to Justice Gorsuch’s “semantic originalist”[14] approach. Here, Justice Gorsuch essentially takes the text of Title VII, providing against discrimination “because of . . . sex,”[15] to a higher level of abstraction than the immediate original application might provide for. Arguing a kind of but-for analysis akin to the “process of logical entailment . . . used by analytical philosophers” rather than the textual comprehension of a layperson, what is meant is truly, in a Dworkinian sense, not obvious—or, rather, not defensible within the purview of original public meaning itself.[16] As Jack Balkin put it, the choice between such various options “cannot be settled by the meaning of ‘meaning.’”[17]
To be sure, some scholars of jurisprudence would contend that what a text means and how the text was applied in its original context are categorically distinct.[18] I think that this view is correct; however, it is beside the point. Even within the distinct category of “original meaning,” there are as many definitions of “meaning” as there are individuals writing on the topic: some would take it as abstract concepts into which we infuse and construct new applications based on updated historical and moral understanding; some would define it as the original text interpreted through methods known to lawyers at the time; some would take these same original methods but circumscribe them to the particular understanding that contemporary lawyers would have reached with these methods. The different variances of “meaning” are legion.[19] Furthermore, those who have a shared understanding of the proper object of interpretation might nonetheless dispute how to give effect to such a legal object—Lawrence Solum’s fantastic work on construction surveys the numerous competing originalist views on this matter.[20]
Within this universe of meaning, Bostock is no outlier. The extremities of higher-order originalism are prevalent in such works as Balkin’s Living Originalism,[21] where the linguistic content of the Constitution is taken as sweeping, conceptual prerogatives upon which our legal order must constantly evolve and develop. In a very real and concerning sense, this is exactly what is meant by the issue of “convergence;” the lack of self-evident scope in originalism-qua-originalism begets an unrestrained theory—a freewheeling theory that can lead to almost anything under the sun.
If words are the skin of living ideas, then what is the body? Do we pierce only the thinnest layer, or reach down and touch the linguistic heart of the matter? Such is the fundamental contention that Vermeule takes to a positivist approach, bereft of internal justification; a point that he correctly raises. Although there is much to be said about venerable, descriptive accounts of originalism (Will Baude’s account being one of the transformative pieces in my journey to originalism[22]), it is necessary for us to delve into a moral-political edifice upon which originalism can safely roost.
III. The Sticking Point of Originalism
For all the fanfare I have thus far given to common good constitutionalism, it is not without its flaws.
Although Common Good Constitutionalism focuses primarily on the failures of positivist originalism to fully encapsulate the substance of law, it fails to respond to the various arguments that justify originalism on explicitly naturalist and normative grounds. In fact, Vermeule and Casey seem to believe that originalism is definitionally severed from morality; in their own words, “To the extent it tries to exclude consideration of principles of law’s morality, originalism tries to banish what cannot be banished.”[23] They are certainly right about morality being unassailable, but their characterization of originalism is plainly inaccurate. Whereas they attempt to disarm originalism by jailing it in the “narrow cage of a particularly rigid positivism,” such a constraint is entirely illusory.[24]
While the previously mentioned endnote thirty-four concedes that “there have always also been normative, non-positivist justifications for originalism,”[25] it completely fails to respond to such defenses. This is unfortunate given such defenses are, in fact, the most persuasive methods of justifying originalism. The works of great scholars like John O. McGinnis,[26] Michael Rappaport,[27] Randy Barnett,[28] Lee J. Strang,[29] and most recently Joel Alicea,[30] have gone into extensive exposition on why propositions of moral and political weight translate naturally into an originalist reading of the Constitution. Many of these works echo the early admonition of Justice Scalia in Originalism: The Lesser Evil,[31] where normative assessments of democratic legitimacy and judicial objectivity underwrite the rhetorical fabric of the discussion.
Indeed, it is rather odd to not engage with moralistic theories of originalism when in fact originalism is often justified or clarified in explicitly pragmatic, policy-driven, or moral language. For example, many of Justice Scalia’s criticisms of using original intent over original meaning were rooted in explicitly practical issues.[32] Likewise, the 1985 speech of Attorney General Edwin Meese[33]—arguably one of the foundational pieces in originalism’s genesis—explicitly notes that “[b]y fulfilling its proper function, the Supreme Court contributes both to institutional checks and balances and to the moral undergirding of the entire constitutional edifice.” Recent speeches from the judiciary, such as Judge Neomi Rao’s speech for the Sumner Canary Memorial Lecture, rely on explicitly normative premises to defend originalism.[34] To leap over discussing originalism in thick, moral terms is to ignore one of the most common rhetorical modes by which it is justified.
Alas, this entire body of work is summarily dismissed in Common Good Constitutionalism under the section entitled “Hybrid Theories.” There, Vermeule states that:
[Normative originalism] is non-positivist at the level of justificatory method, even if it tries to preserve a kind of positivist originalism at the operative level. But then it is at best unclear what in this scheme is distinctively originalist, for the classical law already has this two-level structure.[35]
This brisk rebuff of a large body of originalist thinking fails in multiple ways, not least of which is the fact that it proves far too much. Vermeule accuses originalism of lacking substantive content when framed as existing outside the confines of morality and political organization. This is not only true but plainly evident—it would be silly to assume that originalism simply “is,” and that there is no external reason to subscribe to its tenets. But when originalism becomes properly situated in its normative context, Vermeule swats it away as indistinguishable from classical law.
If this is the case, then common good constitutionalism is no better than positivist originalism. If originalism is a species classical law merely by virtue of being normative and having a weak operative overlap, then it is not clear why anything, including progressive constitutionalism’s “mythology of endless liberation,”[36] would not be welcome under the tent. Even Justice Sotomayor professes a presumptive adherence to the positive law and a “two-level structure.”[37] If common good constitutionalism is everything, then it is patently nothing at all.
This accusation of normative originalism being a simulacrum of classical law is more incoherent when one considers the specific applications that Vermeule himself puts forward. In the penultimate chapter of his book, he lists some examples that typify a common-good juridical program: justification and support for the regulatory state, the collapse of “pre-commitment sovereignty,” and a less expansive view of free-speech rights.[38] Clearly, these are substantive outcomes that most originalists do not reach.[39] In fact, a good number of these examples are used as a vehicle to expressly draw distinctions between the polity as might arise under common good constitutionalism as opposed to originalism. If such radical differences of opinion can come out of what is nominally the same ideology, then the problems raised in “Originalism as Illusion” are a snake that eats its own tail.[40]
To inject the language of Professors Vermeule and Casey into the discussion for a moment, this should be clarified: what I am discussing here is an explicitly “thick” form of originalism. Although it seems that thick originalism’s existence has been acknowledged to some degree,[41] I am not aware of any serious attempts by Vermeule or Casey, jointly or severally, to engage originalism in thick moral terms, aside from the rather brief demurrer that I have already mentioned. This framing—a serious engagement of originalism on its moral terms—seems like the most plausible way to engage with originalism; alas, it has not been done.
The key takeaway to derive from Common Good Constitutionalism is not that originalism is broken. Hardly so. Rather, modern originalism must be imbued with the energy of political and moral underpinning—it is a normative system that necessitates a normative skeleton. It is a creature that derives from the same origin as its common-good cousin; but, as has been demonstrated, it is distinct and substantively unique. This theory of originalism—one that lives within a structure of morals and politics—is the object of the remainder of this essay.
IV. The Need for Normative Originalism
Where does this dialectic leave us? Conventional wisdom would suggest that we are left with oil and water—two apparently irreconcilable ideologies that must necessarily be synthesized to approach a working body of law. This is a difficult undertaking which, as Scalia said, “done perfectly [] might well take thirty years and 7,000 pages.”[42] I cannot hope to mark the precise contours of how a normative originalism will operate in practice. But I shall nonetheless attempt a rough outline.
A. Defining Originalism’s Moral Landscape
The necessary starting place for this far-reaching endeavor is to command the exact prescriptive boundaries of originalist justification. In my view, the act of “doing originalism” is necessarily a synthesis between descriptive elements of Constitutional meaning (i.e., “What is the relevant history?”) with prescriptive elements of discretion and judgment (i.e., “At what scope of generality ought we read the text?”). Jurists and scholars have toiled hard at knowing the dynamics of early American constitutional history down to an exact science; nonetheless, this work must find itself integrated into a schema of larger political mores.
What has been said here probably sounds obscurantist and necessarily unhelpful. To give content to exactly what I mean, allow me to use an example where originalists often squabble: cruel and unusual punishment.[43] One well-behaved property of the Eighth Amendment is that the history is relatively undisputed: a litany of punishments—harsh by modern standards—were prescribed at the time of ratification. The resolution of this question to a normative originalist, then, relies entirely on prescription.
The determination of this question lies entirely outside the scope of “meaning.” The relevant threshold question—before we even attempt to imbue an open-textured provision, like the Eighth Amendment, with meaning—is to ask what the dictates of the court’s institutional morality require it to do when it gives effect to legal meaning. Take two contrasting views: if you believe that the court best effectuates the demands of its role in a republican democracy when it defers generously to other political institutions, you might then deny any construction that is not unambiguously within the scope of original meaning.[44] To the contrary, if you take the view that the court must introduce modern cultural and factual understandings, then you might sympathize with living originalism.
These are questions that originalists must take seriously. It is impossible to have a jurisprudence that is analytically complete without deliberating on these matters. Thankfully, we do not need to blindly jump into the hodgepodge: work has already been done defending the normative content of original meaning.[45] The question for us to resolve is taking those normative judgments and asking how they fit with other principles of judgment. Do the norms of democracy, stability, and rule of law comport with stare decisis? What about the level of generality? These are hard questions, but they are far less insurmountable if they receive the normative attention which they deserve instead of mere academic theorizing.
B. Against “Living Originalism”
By my previous description of two widely differing perspectives on Eighth Amendment originalism, one might conclude that a shift in frame merely kicks the problem of convergence back another rung. If someone dresses up their theory of originalism with some pragmatic appeals, it’s a done deal?
Not so. To borrow an old joke from Justice Scalia, normative originalism doesn’t have to outrun any bears—it just has to run faster than everyone else.[46] Divergence of view is intrinsic in any theory of law, and there is no reason to think that academics and judges would act much different if they were truly hell-bent on guaranteeing particular outcomes to the neglect of institutional stability.
Rather, the benefit of this view is that it brings the discussion back to what is actually relevant and provides less rhetorical confusion into which crafty arguments can be slipped. The posture of originalism as a disinterested, objective theory of law has provided critics like Vermeule ample opportunity to criticize “originalism” without responding to it in a substantive way.
Another added benefit of clarifying the moral landscape in which we operate is that it gives closure to the problem of “living originalism.” Though living originalism is “impishly subversive,”[47] it is not unassailable.
Take for instance the case of Jack Balkin’s flavor of living originalism. Though a thin, positivist structure of originalism may be insufficient to disentangle living originalism from alternative accounts of originalism, more pragmatic arguments for originalism might do the job. This is exactly the argument forwarded by McGinnis and Rappaport’s response to Living Originalism,[48] where they grapple with abstract-meaning theories of originalism and oppose them for being at tension with the values of deliberative democracy. This type of argument cuts through the circular, pointless bickering about which idiosyncratic variety of “meaning” is valid. Instead, it gives closure to the question of “What is Originalism?” based on the theory’s compatibility with our shared political values. Normative originalists should use this type of reasoning as a model by which to ascertain how to apply original meaning and how to refute contrary positions.
This also brings us back to the issue of Bostock. Thinking through the actual ramifications, it should be apparent that responding to the outrage in its wake is far more adequately handled by a thick originalism than a thin one; the debate over what Title VII “means” will inevitably beat around the bush if not contextualized properly.
Therefore, those who think Bostock was right as an originalist matter should emphasize the overarching benefits of consistently applying a text’s broad meaning even when it might be surprising to its original intended audience. Those who oppose it should emphasize that further abstraction away from expected application might denigrate the superintending value of judicial restraint.[49] Of course, these arguments might fail—people disagree on the optimal political structure. Some might find the outcome of Bostock so problematic as to be a definitive indictment of originalism (or, more specifically, the versions of originalism that give rise to the majority in Bostock). But if that is true then they must affirmatively defend their stance and show that their grievance is morally sufficient to justify some alternative theory of interpretation. They can no longer point at originalism-as-a-monolith when the court hands down a disfavored decision and call it a day.
Finally, a natural corollary of this principle is that originalism cannot be treated as a monolith because there are numerous types of originalism with different normative premises. Professor Vermeule has been quick to dismiss any attempts to apply this basis against decisions like Bostock, claiming it a boldfaced “No True Scotsman.”[50] But just as the Pope speaking ex cathedra is not infallible against the Scripture, so too are even the best originalists not infallible against measured analysis of norm-laced original meaning.
Professor Vermuele says that originalism is broken. To that I respond: which originalism?
C. Integrating Originalism into a Meta-Theory
In some sense, the fundamental thesis of Common Good Constitutionalism rings true: there is indeed an ius—one that occupies a space encompassing and expanding beyond the text of law. As originalists, this simply exists as the “moral landscape” we have previously mentioned. But what does that mean in terms of jurisprudence?
Though normative originalism is originalist—it heavily circumscribes the application of non-textual and ahistorical evidence to legal determinations—it also considers how these principles harmonizes with the superintending values that justify originalism.
For instance, stare decisis must be given a long and hard look. In this meta-theoretical look, stare decisis is not a “pragmatic exception”[51] to any fundamental rule of originalism. Rather, it is a tool that flows from the conditions that necessitate originalism to begin with. To what extent it is applied is an entirely prescriptive question; but it at least is one that has the benefit of no longer colliding with originalism in an awkward fashion. In an ironic way, it is quite like Vermeule’s discussion of rights under the common-good: they are not entitlements carved out from the scope of our moral structure, but rather a part of a coherent whole that flows naturally in operation.[52] So too are doctrines like stare decisis, constitutional avoidance, or judicial restraint not exceptions to originalism. They are all logical consequents that operate by nature of their normative progenitors.
For this reason, I propose an example of what a “hard” case might look like under this brand of normative originalism: District of Columbia v. Heller.[53] Even stipulating that the originalist logic behind the majority in Heller is correct, a judge employing a naturalist brand of originalism must still contend with the disturbance of long-standing, democratically enacted law—features that seem to cut against a strict application of originalism, if we are to view it as a mere substructure in a larger political-moral edifice. Indeed, there may be many such examples of cases where the application of pure originalism might frustrate the higher-order values of our system; no theory of law can ever remove hard cases. However, it should also be expressed that this view on originalism is not necessarily the “correct” one—it may be the case that, as a matter of judicial morality, judges should never appeal to considerations that fall clearly outside the scope of original meaning. The answers to these questions are not fully apparent ab initio; the issue is left on the table for jurists to decide what type of originalism best coheres with the dictates of political morality.
To not belabor the point any further than necessary, I leave to the imagination of you, the reader, further speculation as to how this “integration” might look in practice. Would anything in the moral superstructure that holds originalism necessitate any other reassessments of our fundamental judicial norms?
V. Conclusion
At the onset of this essay, I described the baptism by fire that originalism is currently undergoing. If it survives this ordeal, it is not evident that it will look the same as when it entered. The originalism of Scalia, of Bork, and even of contemporary academics may come out with a decidedly moralistic bent to it. If anything that I have said up to this point is convincing, then we should rejoice rather than fear these developments. We should take them for their worth and use them to strengthen the vitality of originalism as a method of good law-making; but to do so requires good-faith engagement with its counterparts. From this strife, it is hoped that we gain something rather than lose.
When the world changed in 1919, it did not weep over the loss of Newtonianism. It rejoiced for the progress of mankind and the discovery of an exciting new frontier. That is what I think common good constitutionalism offers to us: the dominant theory of conservative justice will be different, but its difference will be in its newfound strength and robustness. That is what we must take from the common good.
* Bachelor’s of Physics and Political Science, Kent State University (2022). My immense gratitude is extended to the Harvard Journal of Law & Public Policy: Per Curiam editors for their thoughtful comments and revisions throughout the draft process. I also owe a great deal to my mentor, John González Cohen, who has been formative in my views on law and political morality. A protean in talents—civil rights attorney for the Department of Education, national chess master, and friend—John’s example and sage advice serves as a reminder to be gracious, sensible, and intellectually honest.
[1] David H. Levy, David Levy’s Guide to Eclipses, Transits, and Occultations 17–24 (2010).
[2] 140 S. Ct. 1731. In this piece, Bostock will be interchangeably referred to as “originalist” or “textualist.” These two terms have been treated as analytically distinct by some commentators, but this distinction might be unhelpful for various reasons. See infra note 14.
[3] See, e.g., Josh Blackman, Senator Hawley: Bostock “represents the end of the conservative legal movement,” Reason (June 16, 2020),
https://reason.com/volokh/2020/06/16/senator-hawley-bostock-represents-the-end-of-the-conservative-legal-movement/ [https://perma.cc/Z2DT-HVQY].
[4] Josh Hammer, Common Good Originalism: Our Tradition and Our Path Forward, 44 Harv. J.L. Pub. Pol’y 917 (2021).
[5] Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. Pub. Pol’y 103 (2022).
[6] Adrian Vermeule, Common Good Constitutionalism (2022).
[7] Adrian Vermeule, Beyond Originalism, The Atlantic (March 31, 2020),
https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/ [https://perma.cc/4Q5G-R65R].
[8] Id.
[9] Vermeule, supra note 6, at 117.
[10] See, e.g., Christopher R. Green, Problems with Vermeule, Common Good Constitutionalism. The Originalism Blog (March 22, 2022), https://originalismblog.typepad.com/the-originalism-blog/2022/03/problems-with-vermeule-part-1-introduction.html [https://perma.cc/JWB6-L8E8]. See also Smith, infra note 13.
[11] Vermeule, supra note 6, at 2.
[12] Id. at 192, n. 34.
[13] Id. at 95. See also Peter J. Smith, Originalism and Level of Generality, 51 Geo. L. Rev. 485 (2017).
[14] Some have characterized Gorsuch’s majority as “textualist” rather than “originalist.” See, e.g. Austin Piatt, A Matter of (Statutory) Interpretation: Bostock and the Differences Between Originalism and Textualism, Nw. U. L. Rev. of Note (March 29, 2021), https://blog.northwesternlaw.review/?p=2465 [https://perma.cc/5D4F-XQRL]. However, this view seems to contradict the standard which Gorsuch himself applies. His opinion states that “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock, 140 S. Ct. at 1738 (emphasis added). A better account of the difference between Gorsuch’s and Kavanaugh’s approach is how they define “original meaning.”
[15] 42 U.S.C. § 2000e-2(a)(2).
[16] Vermeule, supra note 6, at 85.
[17] Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 828 (2012).
[18] See, e.g., Chris Green, Originalism and the Sense-Reference Distinction, 50 St. Louis Univ. L.J. 555; Lawrence B. Solum, Semantic Originalism, (Ill. Pub. L. & Legal Theory Res. Papers Series No. 07-24, Nov. 22, 2008), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244.
[19] Balkin, supra note 17, at 822–28. See also Lawrence B. Solum, “Legal Theory Lexicon: The New Originalism,” Legal Theory Blog (June 5, 2022), https://lsolum.typepad.com/legaltheory/2018/10/legal-theory-lexicon-the-new-originalism.html [https://perma.cc/D3D7-26D6]; John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. Ill. L. Rev. 737 (2012).
[20] Lawrence B. Solum, Originalism and Constitutional Construction. 82 Fordham L. Rev. 453, 534–36. Solum himself notes that construction is a normative endeavor. Id. at 472–74.
[21] Jack M. Balkin, Living Originalism (2014).
[22] William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349 (2015).
[23] Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103, 127 (2022).
[24] Steven D. Smith, The Constitution, the Leviathan, and the Common Good (San Diego Legal Studies Res. Paper No. 22-005, May 2, 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4098880.
[25] Vermeule, supra note 6, at 192, n. 34.
[26] John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (2013). See also John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 110 Nw. U. L. Rev. 383 (2007).
[27] Id.
[28] Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2017).
[29] Lee J. Strang, The Clash of Rival and Incompatible Philosophical Traditions Within Constitutional Interpretation: Originalism Grounded in the Central Western Philosophical Tradition, 28 Harv. J.L. & Pub. Pol’y 909 (2005).
[30] J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. REV. 1 (forthcoming 2022). But see Adrian Vermeule, Pickwickian Originalism, Ius & Iustitium (March 22, 2022), https://iusetiustitium.com/pickwickian-originalism/ [https://perma.cc/B5PW-9AEN].
[31] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
[32] Elizabeth A. Liess, Comment, Censoring Legislative History: Justice Scalia on the Use of Legislative History in Statutory Interpretation, 72 Neb. L. Rev. 568, 571 (1993).
[33] Edwin Meese III, Speech Before the American Bar Association, in Originalism: A Quarter Century of Debate (Steven G. Calabresi ed., 2007) (emphasis added).
[34] Judge Neomi Rao, Sumner Canary Lecture at the Case Western Reserve University School of Law (Mar. 3, 2022).
[35] Vermeule, supra note 6, at 109.
[36] Id. at 117.
[37] Garland v. Gonzales, 142 S. Ct. 919 (2022) (Sotomayor, J., dissenting) (“The essence of statutory interpretation is to review the plain meaning of a provision in its context.”).
[38] Vermeule, supra note 6, at 134–78.
[39] It can be fairly argued that the positions espoused by Vermeule are closer to the actual original public meaning of the constitution than those held by self-professed originalists; but this is beside the point. Originalism, properly understood, is a standard of adjudication—not a social identifier—and thus this goes more to the consistency of individual practitioners, not the intrinsic propriety of originalism.
[40] In all fairness, Vermeule hedges his bet by pointing out that his theory does not commit a classical lawyer to any particular outcome; there is leg room for difference of opinion within his theory. This could mean that the positions advocated by Vermeule are merely precatory and that classical lawyers might disagree. But if that is the case, then it just deepens the confusion as to why originalism could not then fall within the ambit of valid natural law—if his entire dispute is with self-justifying originalism, then he is thrashing a strawman.
[41] See Adrian Vermeule & Conor Casey, Argument by Slogan, Harv. J.L. & Pub. Pol’y Per Curiam 10 (Apr. 23, 2022), https://journals.law.harvard.edu/jlpp/argument-by-slogan-conor-casey-and-adrian-vermeule/ [https://perma.cc/ANN6-W6AU].
[42] Scalia, supra note 31, at 852.
[43] See, e.g., Merin Cherian, Note, Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement, 56 Am. Crim. L. Rev. 1759 (2019).
[44] But see Steven Calabresi, Originalism and James Bradley Thayer, 113 NW. U. L. Rev. 1419 (2019).
[45] See supra notes 24, 26–32.
[46] Dahlia Lithwick, The Steve and Nino Show, Slate (Oct. 6, 2011), https://slate.com/news-and-politics/2011/10/breyer-and-scalia-unintentionally-make-the-case-for-cameras-in-the-courtroom.html [https://perma.cc/4N4W-A5QV].
[47] Vermeule, supra note 6, at 98.
[48] McGinnis & Rappaport, supra note 19, at 775–81.
[49] Smith, supra note 13.
[50] Adrian Vermeule, Gnostic Constitutional Theory, Ius & Iustitium (2021), https://iusetiustitium.com/gnostic-constitutional-theory/ [https://perma.cc/9DD7-Y5YA].
[51] Antonin Scalia, A Matter Of Interpretation: Federal Courts And The Law 140 (1998).
[52] Vermeule, supra note 6, at 4.
[53] 554 U.S. 570 (2008).
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