Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject. The text of the Fourth Amendment is filled with significant interpretive questions.
It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around or oppose policies or nominees of the sitting President, simply by virtue of his party. And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.
But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.
The Democratic judicial philosophy has also become clearer. At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.
The confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.
Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.
More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body. Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.