Before the Gorsuch Hearings: Originalism and Textualism Hide Ideological Judgments Behind Claims of Objectivity

February 3, 2017
Guest Post

by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”

All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge – and especially the job of a Supreme Court justice – is much more complex and nuanced than catchphrases like “applying the law as written” suggest.

The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.

Justice Scalia, and his many followers, claim otherwise. They claim that originalism – interpreting the Constitution as understood at the time of the Framing (or the time of the enactment of relevant amendments) – and textualism – refusing to look beyond the text of a statute to determine its meaning – constrain judges and prevent them from imposing their own views. But the sources of information about original meaning are limited and indeterminate, the language of both the Constitution and statutes is often general and sometimes ambiguous, and the factual circumstances can be far removed from anything that the Framers or statutory drafters could have imagined. A judge’s judgments about the underlying purpose of the provisions, how those purposes should be prioritized against other legal principles, how much weight to give relevant precedent, and the likely effects of different results in the world will all come into play.

Perhaps the best way to illustrate these realities are by example. In his book, The Living Constitution, Professor David Strauss (an ACS Board Member) offers a number of important examples of originalism’s failures. The most powerful example, of course is that based on the original meaning of the Fourteenth Amendment, Brown v. Board of Education was wrongly decided. There is little question that most people at the time of the enactment of the Fourteenth Amendment thought that segregated schools were just fine and did not think that the amendment rendered them unconstitutional. (Justice Scalia himself hated talking about Brown and complained about non-originalists “waving the bloody shirt of Brown.”)

Some originalists attempt to explain Brown by reference to the principles of the Fourteenth Amendment. In a 1987 article in the New York Review of Books, Ronald Dworkin described Robert Bork’s attempt to do so: “Bork says that the Brown case was rightly decided because the original intention that judges should consult is not some set of very concrete opinions the framers might have had, about what would or would not fall within the scope of the general principle they meant to lay down, but the general principle itself.” But identifying a general principle and figuring out how to apply it today is what all judges do. And doing that requires judgment, not simply deductive reasoning or poring over historical documents. Although documents may play a role, they are often inconclusive or inconsistent, and figuring out which statements and sources, which principles and motivations, should carry the day is itself a judgment-laden exercise.

Textualism, which Justice Scalia championed and which claims to apply the text of a statute without regard to legislative intent, similarly subsumes judgment calls under a patina of objectivity. For one example, look to the Supreme Court’s jurisprudence on the Federal Arbitration Act. The main operative section of this statute, which was passed at a time when many state courts were refusing to honor arbitration clauses at all, provides that arbitration clauses in contracts “involving commerce … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” But in case after case (almost all of them 5-4 decisions, with the majority opinion authored by Justice Scalia), the Supreme Court read this language to reveal a preference for arbitration over other forms of dispute resolution, even in situations where that preference effectively eliminates any possible relief and in situations where state law would invalidate the contract as unconscionable. That is not textualism. That is a judgment that the statute does and should privilege arbitration and the protections arbitration provides to corporations and other large entities over other important legal principles, including the respect for state contract law that the statute itself identifies.

So while we prepare for the confirmation hearings and go over Judge Gorsuch’s record with a fine tooth comb, do not let the myth persist. Originalism and textualism, declining to “legislate from the bench,” “exercising judicial restraint” – these are all nice words, but they mean something quite specific. They refer to a conservative brand of jurisprudence, one that is just as judgment-laden and contingent as any other.