COSTUMED VIGILANTES: an exchange between me and Jason Spak. He gets the last word.

Me: Here.

Jason: What you wrote about Dahlia Lithwick pleased me. Like you, I get annoyed when lefty commentators “give[] us nothing other than personal policy-outcome preferences as a guideline for how judges should interpret the law.” I read the other blog entries you linked to, and concluded that if you’re on crack, one wouldn’t know it from reading your thoughts on constitutional interpretation.

Do you really want to come up with a counter-argument for people like Ms. Lithwick? If so, my hunch is that it will be more profitable to consider what they have to say about original understanding, than it will be to challenge them to devise a comparable theory of jurisprudence. To that end, here are three questions that I sometimes think about:

1) Like you, I tend to think bitterly of certain passages, like the infamous “mystery doctrine” in Planned Parenthood v. Casey, as policy preferences cloaked in high-falutin’ language. But to some extent, aren’t passages that advocate “original understanding” doing the same thing? In other words, would conservatives like “original understanding” if it wasn’t helpful to them politically? See, e.g., http://www.offthekuff.com/mt/archives/001227.html

2) The Supreme Court has used substantive due process, the essential tool in every activist judge’s kit, in good ways: it struck down an Oregon law that barred parents from sending their kids to Catholic school (Pierce v. Society of Sisters), and a Nebraska law that prevented kids from learning German in school (Meyer v. Nebraska). The opinions in those cases find a “right to parental control of education” that isn’t in the constitution any more than a “right to abortion” is. Would conservatives really jettison substantive due process, if they knew that laws like these might be among the results of doing so?

3) Hasn’t the court always been politicized? Look at the 19th century, when the Court used substantive due process to decide Dred Scott on political grounds, or the 18th century, when a conservative attempt to pack the courts with political hacks before Jefferson could do it gave us Marbury v. Madison.

Me: “Do you really want to come up with a counter-argument for people like Ms. Lithwick?”

Not necessarily, actually. I’m increasingly convinced that while it’s possible to talk about what NOT to do in jurisprudence, it’s very difficult or maybe even impossible to develop a hard and fast, bright-line theory of what TO do. Hence the “prudence” in jurisprudence, I guess. I am more comfortable about talking about what I think is definitely out of bounds than in coming up with a theory that would provide answers to all or maybe even most legal questions. It’s sort of like defining art, maybe–any top-down theoretical definition is going to be inadequate, but you do need some way of talking about what artists are doing and whether it works and whether it’s good. Not a great analogy, but I think it at least captures the degree of fuzziness I think is inevitable in jurisprudential theory. (All those “maybe”s and “I think”s should show how uncertain I am even about this uncertainty!)

“But to some extent, aren’t passages that advocate ‘original understanding’ doing the same thing? In other words, would conservatives like ‘original understanding’ if it wasn’t helpful to them politically? See, e.g., http://www.offthekuff.com/mt/archives/001227.html”

See, those are three different questions: a) Isn’t ‘original understanding’ philosophical-kingship and vague disguise for personal policy preference? To this I think the answer is ‘no, but.’ Obviously ‘orig. understanding’ needs to be fleshed out. (For example, Scalia is not an “originalist” but rather a “textualist,” a philosophically different beast; and not a 100% textualist at that, more of a 75% textualist. He gives a nice popularized explication of his views, with replies and his response to those replies, in A Matter of Interpretation, which youmight really like if you haven’t read it already.) But one of my basic “Are you a philosopher king?” tests for judges is whether they would say that certain unpalatable policy options are forced on them by the laws. E.g. I don’t think the Constitution guarantees the right to life of the unborn, even though I’d obviously like it to and I’ve read various arguments that it does. So I do think it’s possible to be a “real” textualist or originalist (though not a 100% one, see above re impossibility of top-down theories) rather than just using that interpretive framework as a convenient disguise for policy preferences.

b) Would conservatives be “originalists” (argh, NOBODY is a 100% originalist or textualist and the concepts are almost certainly incoherent just from a linguistic philosophy standpoint, but I’m going to shut up about that now) if/when that perspective doesn’t serve their policy ends? It depends on which conservatives! (And maybe on which policy ends.) See above re possibility of jurisprudence against one’s own policy preferences.

c) What do I think of the Off the Kuff link? …Eh, I’m not wildly impressed by it. I think it sounds like Kuffner hasn’t read the extended-play version of orig/textualist claims, and is working off an oversimplified understanding of what they entail; and it’s SOOOO WEIRD!!!! to say that the amendment process, as specified in Article V, is an argument for tacit amendment of the Constitution by crusading judges! I mean, I did a real doubletake on that one.

“The Supreme Court has used substantive due process, the essential tool in every activist judge’s kit, in good ways…. Would conservatives really jettison substantive due process, if they knew that laws like these might be among the results of doing so?”

Again, depends on the conservative! I honestly do NOT know enough about the arguments in Pierce to express a judgment of it one way or the other. (Again with the fuzziness. I’m so unsatisfying!) But I can easily come up with “substantive due process” claims that would provide results I like while relying on a jurisprudential view (of the courts’ role in discerning and maintaining the rule of law and the Constitution) that I find abhorrent. So yeah, I’d give up some good stuff (which we could GET OTHER WAYS, via all the traditional other tools of social movements) to restrict the courts.

“3) Hasn’t the court always been politicized?”

Oh, sure. And doubtless always will be. The question is, though, once we acknowledge this, do we seek to get away with politicization for our own ends (git ’em girl, before they git you) or to minimize politicization, maximize public skepticism of it, and minimize the political benefits of it for any side? IOW you’ll always have some level of politicization/philosopher-kingship, but I am idealistic enough to think it varies and we can through our jurisprudential theories contain it to some extent.

Final thought: One helpful way to think about this is to take the perspective of the voter trying to be responsible in exercising the franchise. Can voters know what they are voting for? I go into that here.

Jason: A) I agree — wholeheartedly — that it’s “very difficult or maybe even impossible” to develop a top-down theory of judging. More to the point, it’s annoying — the kind of empty exercise that gives phrases like “ivory tower” their often pejorative ring. I thought you were trying to create such a theory in the earlier blog posts you linked to, which seemed to catalogue of levels of political influence and types of stare decisis. I’m glad to know that you either weren’t then or aren’t now doing so.

1)a) You mention “one of [your] basic ‘Are you a philosopher king?’ tests for judges . . . .” Do you really have more than one such test? If so, you should consider contacting Quizilla and creating something on-line.

1)c) I should have linked, not to Kuffner, but to the Lithwick article he cites. In it, she says that “Scalia can afford to be an originalist, only because he personally agrees with most of the moral and religious assumptions of the framers.” To my mind, that’s the argument (the idea that Scalia et al. mouth the words “I’m only following the framers” because they know that the framers either favor them, or favor the status quo, on issues like gay marriage) that advocates for “original understanding” and their kin need to confront.

Z) I’m not sure I grasp your marriagedebate link. There usually isn’t too much press when the Court construes or misconstrues the laws that regular people vote for (not that we directly vote for anything here in Pennsylvania); the real kerfuffles happen when the Court construes or misconstrues amendments to the Constitution, none of which were “voted on” in quite the way that pieces of legislation are.