The new politics of Supreme Court confirmations substantially affects the retirement calculus for justices. The elimination of the filibuster for Supreme Court nominations together with the much stronger possibility that a Senate controlled by one party will not confirm a Court nomination by the President of the other will change the date of many justices’ retirements.
Three objectives inform the retirement decisions of Supreme Court justices. First, justices would like to preserve their legacy and thus would prefer to be replaced by a justice like themselves. Second, most justices want to hand back the seat to a President of the party that appointed them. This is secondary to the first objective and when their judicial views diverge substantially from the party that appointed them, as it did in the cases of Justices Blackmun, Stevens and Souter, they will resign during the Presidency of the other party. Third, they want to resign at a time when it will not cause institutional damage to the Court or inconvenience to their colleagues.
The death of the filibuster and the possibility of a blockade generally makes it much easier to meet these objectives if the President and the Senate are controlled by the same party. First, the blockade can leave the Court short staffed, inconveniencing their colleagues. More importantly, the standoff between the President and Senate places the Court in a partisan cross-fire, harming its legitimacy.
In contrast, the absence of a filibuster gives a free hand to the party that appointed the justice if he resigns during a period of unified control of the Senate and Presidency by that party.
Richard Primus has graciously clarified his claim about originalism. It is not that many originalists believe it has never been tried in simple sense. Instead, “in the context of my initial post, ‘never-been-tried’ is a shorthand for something like ‘not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.’ ”
I don’t entirely agree with this narrower claim and I don’t think most other originalists would either, but it is a more interesting question. There are two parts to my demurral. Richard focuses on testing the question of whether originalism constrains decision makers and creating stability. Constraint and stability are not for me the chief advantages of originalism. Nor are they for such varied theorists as Randy Barnett, Keith Whittington, or Jack Balkin. And I am not sure the advantages that these theorists emphasize are reducible to an empirical test through case law. Mike Rappaport and I, for instance, have suggested that the original meaning of the Constitution is likely beneficent by other kinds of arguments. In short, there other justifications for originalism and other ways of making these justifications plausible than empirical review of cases . Originalism can be evaluated in other ways.
A more direct disagreement is that I think there has been enough practice of originalists to suggest, although not prove, that originalism does lead to substantial, albeit not perfect, constraint. Let me set aside the more distant past which was the subject of a prior post. In recent times Antonin Scalia and Clarence Thomas were the most consistent adherents of originalism and not coincidentally they agreed in about ninety percent of cases.
In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’” Interestingly, Toobin never argues that Thomas’s claim is mistaken. Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true. But in my view, Thomas’s claim is both true and damning.
In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.
1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products. Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.
While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice.
Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as either a Scalia clone or not hard working, Toobin acknowledges that these charges are not true. In fact, Toobin notes that Thomas is by far the most active writer on the Court, with twice as many opinions as his nearest competitor on the Court. Moreover, many of Thomas’ opinions are solo opinions that were not joined by Scalia.
But that leads Toobin to his criticism of Thomas. Toobin in essence claims that Thomas is an arrogant conservative, placing his own views over those of his fellow justices and the Court generally (although Toobin does not use the term arrogant). As Toobin puts it:
It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.
While I agree with Toobin that Thomas is the justice pursuing originalism most consistently on the Court, I don’t agree with the implicit criticisms that Toobin asserts.
Rick Hasen has called for making Supreme Court appointments an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court. He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.
Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.
Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution. But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.
In the Atlantic, Garrett Epps has a piece on Clarence Thomas. I like Epps. He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful. And his book on the 14th Amendment was quite enjoyable. But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas. In fact, I think Epps was quite unfair to Thomas. I thought I would respond to some of his major points.
First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC. Epps notes that the “experience left him embittered.” While Epps sort of presents both sides, he neglects an obvious inference. The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false. To be clear, I don’t know what happened between the two. But the failure to note this obvious explanation for Thomas’s reaction is disappointing.
Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.” This complaint is curious. Thomas joined the three other dissents, which did mention these precedents. Thomas wrote separately to discuss the original meaning. Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again.
While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship of Justice Anthony Kennedy’s opinion. That is as it should be because the opinion is longer on sentiment and empathy than legal analysis. And yet it is now as much a part of the United States Reporter as the most well-reasoned judgment. Thus, it is worth looking at its doctrinal implications, none of which are happy.
First, Kennedy consciously removes the historical constraints on the Court’s ability to declare new fundamental rights. Washington v. Glucksberg (1997), the most important modern substantive due process case, required fundamental rights to be deeply rooted in the history and tradition of America. Whatever else can be said about it, same-sex marriage does not begin to meet that test. Kennedy says correctly that some other substantive due process cases did not meet that test either (Roe comes obviously to mind). While Kennedy does not quite say that he is overruling Glucksberg altogether, its relevance has been gravely weakened. Justices seem free to look to their views on the nature of justice rather than history to discern new fundamental rights.
While some libertarians in the past have been enthusiastic about this development, it is unlikely the Court will use this power to pursue economic liberties. I think this development is likelier to revive claims that some other social rights, like the right to assisted suicide, are also constitutional ones.
Kennedy also gestured to the equal protection clause in his decision.