Originalism and textualism: Theoretically flawed and empirically refutable

Editor Ryan Webler documents the judicial shift toward originalism and textualism over the past 75 years. Webler argues that those ideologies of judicial decisionmaking are both flawed and refutable.

The federal judiciary has undergone a seismic jurisprudential shift over the last seventy-five years.[1] Documented in empirical studies by scholars focused on ex ante and ex post voting proxies[2]-and more recently voting alignments[3]- this shift has occurred in both ideological directions[4]. While perhaps flawed, or at least incomplete, these studies have probably overstated the role that ideology plays in judicial decisionmaking; by defining ideology in broad terms as anything “extra-legal” judicial behavior scholars have made war with “formalism” or “legalism”[5]. Whatever these studies may lack in specificity and intra-scholar agreement however, they generally agree that ideology (however that may be defined or measured in the particular study) plays a significant role in judicial decisionmaking.

Law schools and the judiciary have responded vociferously to these claims by criticizing their methodologies and the scope of their findings[6], suggesting that ideology is defined too loosely and that the relationship between nominators and their appointees is indicative of judicial rather than policy agreement. To elevate law above politics, law professors and judges have elaborated upon the notion of “legalism” by creating a wide range of judicial theories including originalism and textualism. These theories draw a clear distinction between law and politics by separating the judicial role from the legislative one; originalism suggests that legal texts should be understood to mean what they meant to those who wrote them, textualism suggests that judges should rely on-to varying degrees-the text and the text alone in reaching their determinations.[7]

These theories rest on two central premises: (1) law and politics are separate so that (2) judges should “restrain” themselves by limiting themselves to analogous, algorithmic, “law-like” decisions made up of textual, historical analysis that precludes analysis of the political, economic, or social consequences of their decisions.[8] The two premises listed above will be analyzed in the pages to follow. In short, they do not hold up to rational scrutiny. As Political Science and now other fields within Social Science, including Economics, have shown: law and politics are not wholly separate. Additionally, originalists and textualists are not judicial restrainists; these theories in fact fill a void left by the theory they supposedly extend, that of judicial restraint.[9] This theory has- as Judge Richard Posner details in his essay The Rise and Fall of Judicial Self-Restraint- three main tenets:

(1)judges apply law, they don’t make it (call this “legalism”-though “formalism” is the commoner name-or, better, “the law made me do it”); (2)judges defer to a very great extent to decisions by other officials-appellate judges defer to trial judges and administrative agencies, and all judges to legislative and executive decisions (clal this “modesty,” or “institutional competence,” or “process jurisprudence”); (3)judges are highly reluctant to declare legislative or executive action unconstitutional-deference is at its zenith when action is challenged as unconstitutional (call this “constitutional restraint”).[10]

As Judge Posner argues, the conflict between tenets one and three defines why originalism and textualism are not restrainist theories; if judges are to follow the law where the law leads them, they will often overrule precedent or invalidate what they consider to be unconstitutional statutes because most precedents and many modern statutes do not comport with originalist principles (originalism as it is espoused today is a relatively new theory). Beyond being theoretically contradictory and empirically refutable, originalism and textualism are, despite the protestations of their supporters, associated with conservative ideological aims. Thus, these theories are wolves in sheeps’ clothing, that is, they are simply well dressed rationalizations for conservative decision-making.

More than seventy five years of empirical Political Science scholarship- beginning with Herman C. Pritchett’s study of the relationship between ideology and Supreme Court decision-making[11]-has focused on the relationship between politics and law. A full or even partially satisfactory summary or appraisal would require many more pages than I have here; thus, I will narrow my focus to recent empirical work that illustrates the following four points: (1) there is no clear separation between law and politics, (2) originalists and textualists are no more self-restrained and are even perhaps less self-restrained than other judges or justices, (3) there is a clear relationship between these theories and judicially conservative results, and (4) there is a causal link between the end of judicial self-restraint and the rise of these constitutional theories.

The first point, that law and politics are not wholly separate, is evidenced by Professors Epstein, Martin, Quinn, and Segal in their paper:“Ideological Drift Among Supreme Court Justices: Who, When, and How Important?” The authors relate one ex post measure- Segal-Cover scores[12] which are garnered from a coded measure of specific newspaper editorials on Supreme Court nominees- and the ex ante measure of the justices’ coded votes found in the Supreme Court database[13]. They produce the below graphic which illustrates the relationship between the Segal Cover score predictions and their subsequent voting patterns from 1953-2005.

As the graphic illustrates, there is an imperfect but relatively clear relationship between how justices are predicted to vote based on their Segal Cover scores and how they actually vote as measured in the Supreme Court database. A second proxy, party of appointing President, has also been used to illustrate the impact of ideology on judicial behavior[14]. Judge Posner uses this crude proxy to illustrate the judicial votes in the Court of Appeals as a function of the party of a judge’s appointing president from 1925-2002.[15]

Vote Republican President Democratic President
Conservative 42.2 37.6
Liberal 28.1 33.3
Mixed 5.9 5.1
Other 23.9 23.9

While seemingly small, a five percent ideological difference in an analysis of thousands of decisions has a significant impact on precedent and- in a common-law system constructed on precedent- future decisionmaking. In Are Judges Political, Cass Sunstein provides additional empirical evidence that a judge’s ideology plays at least some role in judicial decisionmaking. Sunstein illustrates a causal link between the ideological composition of Courts of Appeals voting panels (measured by appointing president) and the ideological direction of decisions.

(Left columns represent two Republican appointees, middle one Republican appointee one Democratic appointee, right two Democratic appointees)[16]

As the data illustrates, appointing party has a significant impact on voting behavior; as Sunstein notes, “for both Democratic appointees and Republican appointees, the likelihood of a liberal vote jumps when the two other panel members are Democratic appointees- and it drops when the two other panel members are Republican appointees”.[17] If judges are apolitical, if politics and law are wholly separate, would panel composition have an impact on voting behavior? Would studies of eighty years of Court of Appeals voting data evidence a five percent difference in the outcome of decisions rendered by Republican versus Democratic appointees? Would Segal-Cover scores provide a rough estimate for how a particular justice might vote based on his or her pre-confirmation political and other history? Not likely.

As I suggested earlier, these studies are but the tip of the judicial behavior iceberg; since Herman Pritchett’s 1940’s Supreme Court voting analysis cited above[18], scholars have been analyzing the role that ideology plays in judicial decision-making. While early studies focused primarily on the Supreme Court, recent studies-such as Sunstein’s and Posner’s- have turned their attention to the Circuit and District Courts. A particularly recent analysis offered by Judge Posner and Professor Epstein and Landes in their 2013 book The Behavior of Federal Judges concludes that ideology plays a greater role in judicial decision-making the higher one goes up the judicial ladder; thus, ideology plays a greater role in the Supreme Court than in the Court of Appeals and in the Court of Appeals than in the District Courts. Judge Posner reached a similar conclusion in his 2008 book How Judges Think, listed above.[19] As these studies suggest, the notion that textualism and originalism and their fore-father “legalism” suggest, that politics and law are wholly separate and that ideology plays no role in a judge’s decision-making, lacks empirical support.

The second premise of legalism, textualism and originalism mentioned previously,that these theories are associated with judicial restraint,is also objectionable. In his essay the “The Rise and Fall of Judicial Self-Restraint”, Judge Posner describes judicial self-restraint as meaning three things, summarized as (1)judges apply law, (2)judges defer to legislative and executive decisions,(3) judges are highly reluctant to declare legislative or executive action unconstitutional.[20] Posner suggests that these principles were replaced by modern constitutional theories which, “gives the theorists the required certitude, emboldening them to ignore Holmes’s dictum that certitude is not the test of certainty”. Thus, “Scalia and Thomas insist that the apparent tension between their sharp demands for restraint in some areas and their sweeping exercise of activism in others is resolved by the written Constitution itself.” Judge Posner agrees with Judge Wilkinson who asserts that, “modern constitutional theories “have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools which have little in common other than a desire to seek theoretical cover for prescribed and often partisan results” and have which “done real damage…to the ideals of restraint that the greatest judges in our country once embraced.” In his book How Judges Think Posner elaborates on the political nature of originalism and textualism:

This politically conservative response (“originalism” or “textualism-originalism”)- which under different conditions could be a liberal response but is more congenial to conservatives because of its evocation of an era more culturally conservative than today-illustrates a more general tendency of judges to reach backward for the grounds of their decisions.[21]

Their justification for such behavior is their alternate “methodology that involves deriving conclusions from premises by logical operations as distinct from basing action on a comparison of the social or political consequences of different outcomes”.[22] Instead of evidencing the second definition of judicial self-restraint mentioned above-judicial minimalism- originalism expands the power of the judge by “enlarging his scope”.[23] Posner elaborates, “A judge or Justice who is out of step with current precedents reaches back to some earlier body of case law (or constitutional law) that he can describe as his bedrock, the authentic Ur text that should guide his decision”.[24] However, “the older the bedrock, the greater the scope for manipulation of meaning in the name of historical reconstruction or intellectual archaeology”.[25] Ultimately, according to Posner, “Interpreting an antique text, discerning tradition, and deciding which precedents should be deemed “settled” (why was Plessy v. Ferguson not a “settled” precedent?) and what exactly the “settled” precedents mean are so fraught with uncertainty that the judge’s preferences as to outcome will not only shape his theory but also determine its application to specific cases”, a fact which Justice Scalia led onto when he admitted, “It’s (Originalism’s) greatest defect, in my view, is the difficulty of applying it correctly”.[26] Another justification for originalism and textualism that is related to judicial restraint is the argument that these theories will create judicial stability. But this argument is theoretically unsound. As Posner suggests, “There are two basic legalist tools for achieving a reasonable degree of certainty in a case law system. One is constitutional and statutory texts; the other is precedent. But these are in tension. An originalist has to be suspicious of precedent, because at best it is a judicial gloss of an authoritative text and at worst it is judicial ab nihilo. In a world governed by originalism, as in a civil law system (in which detailed codes make textualism a more feasible strategy than in our system), the role of precedent as a stabilizing force would be diminished”.[27] To recap, the association between originalism,textualism and judicial self-restraint is theoretically unsound for several reasons: (1)these theories expand the power of judges by enlarging the scope of their decision-making by rationalizing the use of vague, time-worn texts, and (2)in their pure form, these theories have little respect for precedent.

Professor Epstein and Martin empirically reinforce Judge Posner’s judicial self-restraint argument. In an analysis of decisions that overturn federal, state and local laws between 1969 and 2009, they found that justices were more likely to invalidate statutes that did not comport with their ideologies and that judicial self-restraint has been, since the advent of judicial theories such as originalism and textualism, waning.[28]

[29]

[30]

How can originalists and textualists be considered judicial minimalists who are concerned with stability if they are expanding the reach of their own authority and invalidating statutes at a greater rate? How can they assert that ideology is separate from their judicial theories when there is a clear correlation between originalism/textualism and their respective espousers’ willingness to invalidate federal, state, and local laws that oppose their conservative ideology?

As the scholarly evidence relied upon in this paper suggests, textualism and originalism rest on two flawed premises- that law and politics are separate, and that these theories are related to judicial minimalism, restraint and respect for democratic institutions. To the first point- as seventy-five years of empirical and descriptive Political Science research makes clear, there is no such clear line between law and politics- a judge or Justice’s ideology is correlated with their decision-making; and to the second point, the origins of originalism and textualism coincide with the end, or at least, the gradual waning of judicial self-restraint. With these quantitative and qualitative arguments in mind, what are we to make of these theories? I think there is much truth to Professor Johnathan O’Neill’s answer, that these theories are little more than an attractive answer to “those politicians, judges, and theorists who sought a basis for legitimacy, order, and limits in response to the deep political and jurisprudential changes surrounding them”.[31] Put simply: originalism and textualism are the rightward response to the Warren Court’s leftward jurisprudential “seismic shift”.


[1] Measuring the Conservatism of the Roberts Court. (2010, July 24). The New York Times. Retrieved from http://www.nytimes.com/interactive/2010/07/25/us/20100725-roberts-graphic.html?ref=us

[2] Ex-Ante measures describe a judge or Justice’s pre-appointment ideology, Ex-Post their post-confirmation behavior.

[3] These “voting alignment” measures refer to Martin-Quinn scores. By controlling for transitioning variables such as docket and court composition, Martin-Quinn scores track the ideological behavior of judges and Justices over time and illustrate their ideological movement by evaluating the voting composition of non-unanimous decisions. Judges’ and Justices’ respective scores are determined by how they vote relative to one another; thus, a conservative Justice is “Rehnquist-like” a liberal justice “Marshall-like”.

[4] Silver, N. (2012, March 29). Supreme Court May Be Most Conservative In Modern History. The New York Times. Retrieved from http://fivethirtyeight.blogs.nytimes.com/2012/03/29/supreme-court-may-be-most-conservative-in-modern-history/

[5] Professor Lee Epstein, Professor William Landes, and Judge Posner briefly discuss this conflict in their recent book: Epstein, Lee; Landes, William; Posner, Richard  (2013). The Behavior of Federal Judges. Cambridge: Harvard

[6] Wallace Mendelson

[6]The Journal of Politics , Vol. 28, No. 2 (May, 1966), pp. 429-432

[6]Published by: Cambridge University Press on behalf of the Southern Political Science Association

[6]Article Stable URL: http://www.jstor.org/stable/2127558

[6]

[7] Lexicographer Brian Garner and Justice Antonin Scalia’s recent book: Reading Law: The Interpretation of Legal Text, details what they consider to be the merits of originalism and textualism and how judges and Justices should apply these theories in their decision-making.

[8] Posner, R. (2012). The Rise and Fall of Judicial Self-Restraint.California Law Review, 100(3), Retrieved fromhttp://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf 520-521

[9] id. at n.534-538

[10] id. at n, 520-521

[11] “Divisions of Opinion among Justices of the U.S. Supreme Court, 1939-1941,” 35 American Political Science Review 890 (1941)

[12] Explained and qualified further here: Segal, J., Epstein, L., Cameron, C., Spaeth, Harold. (1994). Ideological Values and the Votes of Justices Revisited. Retrieved from http://epstein.usc.edu/research/conferencepapers.1994MPSA.pdf

[13] These voting patterns are taken from Professor Harold Spaeth’s U.S. Supreme Court database: http://scdb.wustl.edu/

[14] The shortcomings of the appointing president’s party proxy and other voting proxies as well as other measurements of judicial behavior are expounded in depth here: Fischman, Joshua., Law, D., (2008). What is Judicial Ideology, and How Should We Measure It?. Washington University Journal of Law and Policy, Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121228

[15] Posner, Richard. (2008). How Judges Think. Cambridge: Harvard. 26

[16] Sunstein, Cass; Schkade, David; Ellman, M. Lisa; Sawicki, Andres (2006). Are Judges Political? An Empirical Analysis of the Federal Judiciary. Washington D.C.: Brookings Institute. 23

[17] id. n. 23

[18] see foot-note 11

[19] see foot-note 15

[20] see foot-note 8

[21] Posner, Richard. (2008). How Judges Think. Cambridge: Harvard. 103

[21]

[22] id. n. 103

[23] id. n. 103

[24] id. n. 103-104

[25] id. n. 103-104

[26] 57 U. Cinn. L. Rev. 849 (1988-1989), Originalism: The Lesser Evil; Scalia, Antonin http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ucinlr57&div=36&id=&page=

[27] id. n. 345

[28] Epstein, Lee; Martin, Andrew (2011). Is the Roberts Court Especially Activist? A Study Of Invalidating (And Upholding) Federal, State, and Local Laws. Emory Law Journal, Retrieved from

[28]http://epstein.usc.edu/research/RobertsActivism.pdf

[29] Landes, William (2012). Was There Ever Such A Thing As Judicial Self-Restraint. California Law Review, Retrieved fromhttp://www.californialawreview.org/assets/pdfs/100-3/02-EpsteinLandes.pdf 752

[30] id. n. 753

[31] O’Neill, J. (2005). Originalism in American Law and Politics a Constitutional History. Baltimore: The John Hopkins University Press.

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