I’m a big admirer of Stuart Taylor’s Supreme Court commentary, as my many favorable references to his weekly column reflect. Like all of us, Taylor undoubtedly has his political preferences, which are surely different from my own, but his work regularly combines a deep intellect and a relentless honesty.
As usual, there is much in Taylor’s current column, “In Praise of Judicial Modesty” (available here for a week) that is insightful. The general argument of Taylor’s column is that an approach of “judicial modesty,” as expounded by Judge Richard Posner in a recent article in the Harvard Law Review, offers the best way to avoid the “worst excesses” of originalism, on one side, and the “living Constitution” approach, on the other. I’ll defer commenting on that general argument. Instead I’d like to focus here on the fact that in his effort to adopt a stance equally critical of originalism and the “living Constitution” Taylor takes some unfair shots at originalism:
First, and most surprising, Taylor asserts that the position of originalist justices that their own policy preferences should play no role in judging “is undercut somewhat by the consistency with which the conservatives’ votes on abortion, religion, race, gay rights, and many other big issues happens to fit their policy preferences.” I do not think that this serious charge can withstand scrutiny. Take abortion, to begin with. As I explain more fully here, originalist justices take the substantively neutral position that the Constitution does not speak to the question of abortion. Thus, they would defer equally to legislative enactments in the area—both to those that permit abortion and to those that regulate or restrict it. To make the point another way: If originalist justices were indulging their policy preferences on abortion, they would rule that the Constitution does not allow permissive abortion laws. Scalia and Thomas have clearly rejected that position.
Ditto on religion and gay rights and most “other big issues.” To hold, as originalist justices have, that the Establishment Clause permits, say, nonsectarian prayers at public school graduation ceremonies does not mean that it requires any prayers at all. To hold that the Equal Protection Clause permits traditional marriage does not mean that states may not legislate in favor of same-sex marriage. And so on. Where originalists defer to legislative enactments, whichever way those enactments go, it is difficult to see how Taylor can fairly insinuate that they are indulging their own policy preferences. By contrast, of course, the “living Constitution” approach openly invites justices to indulge the policy preferences of the Left.
Issues involving race are more complicated, since virtually everyone agrees that the Equal Protection Clause prohibits at least some race-based classifications. The prevailing originalist position appears to be that a state may no more discriminate in favor of minorities than it may discriminate against them. Although this position has been subject to criticism on originalist grounds (criticism that I will not address here), there is clearly a strong case that such equal treatment reflects the equality norm of the Equal Protection Clause. Perhaps more to the point in rebutting Taylor’s criticism, I’m not sure when such equal treatment came to be seen as the special preserve of conservatives.
Second, Taylor thinks that Justice Breyer persuasively “skewers originalism” when Breyer asks: “Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting the Bill of Rights in the centuries to come?” Breyer’s question strikes me as utterly unpersuasive. At least as Taylor presents it, it is an exercise in self-contradiction, as it attempts to appeal to the intentions of the Framers in making an argument against originalism generally. And why would the Framers have argued about the words of the Constitution if they believed that judges could regard the words as empty vessels? (As I argue here, I believe that virtually everyone who has not suffered the detriment of a modern legal education recognizes that the originalist approach inheres in the very nature of the Constitution as law.)
Third, Taylor contends that the original meaning is “often intolerable to conservatives as well as liberals.” It is of course true that the free play that the Constitution gives the democratic processes can yield unjust results, and conservative as well as liberal judges, being human, are tempted to trump those results they regard as unjust (but constitutionally permissible). But originalism provides an objective standard that disciplines (or at least is available to discipline) the originalist adherent, whereas the “living Constitution” approach encourages judges to yield to those temptations. (One other sidenote on race: Taylor points out that the fact that the Equal Protection Clause applies only to the states, not to the federal government, “has not stopped Scalia or Thomas from voting to strike down federal racial preferences for minorities.” I suspect that this result has much more to do with the originalist’s challenge of accommodating precedent than with the desire to avoid “intolerable” results.)
I haven’t yet read the Posner article that Taylor trumpets, so I will wait to see how Posner attempts to transmute his expansive view of judicial discretion into judicial modesty. But I doubt very much Taylor’s suggestion that comments that John Roberts and Sam Alito made about judicial modesty at their confirmation hearings indicate that they might share Posner’s approach. Posner (according to Taylor’s quotes) believes that most constitutional decisionmaking is “essentially personal, subjective, and indeed arbitrary.” Roberts offered a sharply contrasting view in his 2003 confirmation hearing for the D.C. Circuit: “I do think there is a right answer in a case, and I think if judges do the work and work hard at it, they’re likely to come up with the right answer.” I see no reason to doubt that that is Alito’s view as well.