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Originalist Sin

This column was written by Matthew Yglesias.
This year, Sandra Day O'Connor's retirement hung like a cloud over the July 4 holiday, and we should expect the ghosts of the founding generation that made America's revolution and wrote its constitution to hang over the months to come as her replacement is confirmed.

O'Connor was, despite the protestations of the abortion-obsessed extremists of the cultural right, a conservative justice. But when she pushed the law to the right, as she almost invariably did -- on topics ranging from federalism to affirmative action to, yes, even abortion -- she did so in modest ways. She trimmed the wings of the liberal decisions of the Supreme Court's past, and she expanded the scope of conservatives ones. She did not, however, seek to remake the law by leaps in bounds, overturning long-settled legal doctrines and substituting novel ones in their place. At times, her reluctance to overturn precedents went to slightly ridiculous extremes. When Justice Anthony Kennedy joined with the Court's liberals to strike down anti-sodomy laws and overturn Bowers v. Hardwick, O'Connor concurred in the judgment while insisting that, somehow, Bowers should continue as good law. On the whole, however, her approach was the right one.

That her replacement will be politically conservative -- indeed, more conservative than O'Connor -- is a foregone conclusion. That, unfortunately, is a battle liberals lost in November 2004, and there's essentially nothing we can do about it. There remains, however, an important contrast between a cautious conservative in the O'Connor mold and a reckless crusader like Clarence Thomas. For example, Thomas's view on the contentious issue of public displays of the Ten Commandments is that the Court should simply ditch decades of previous decisions and take the stance that the First Amendment's "establishment clause" does not apply to state governments. Much is controversial about this area of law, but the basic fact that this approach was considered and rejected long ago is not. To Thomas, that rejection carries no weight and should simply be brushed aside in favor of his own take on what the Constitution originally meant back in the late eighteenth century.

This theory of jurisprudence poses a much more serious threat to the liberal project than does the mere existence of a conservative majority on the Court. And as there's little sign of a public outpouring of support for a return to the nineteenth century's radically circumscribed view of federal power, there's at least some chance of liberals winning a fight on this issue or, at a minimum, using it to frame judicial controversies in a way that will help liberals regain power through the ballot box.
Some, like Boston University law professor Randy Barnett, defend this approach, citing the dictum that "there is no point in compounding a mistake, after all." This exploits an ambiguity in the meaning of "mistake" and ignores what sound reasons exist for thinking it wise for judges to adhere to the original meanings of legislation and constitutional text. What we want from judges is the rule of law -- the combination of stability and predictability that allows people to be reasonably certain about what is and is not illegal and that gives the public such confidence as it has that judges are applying a fixed code rather than making things up as they go along.

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When an issue is litigated for the first time, the best way to preserve this value is to do the best one can to stick to the original understanding of what the law said. When a law or amendment is passed, people form expectations about what the consequences will be, and severe departures from the original understanding upset those expectations. This is bad, and it detracts from the purpose of having laws and courts in the first place rather than subjecting citizens, government officials, and business groups to arbitrary whims. Once decisions are handed down, however, the situation changes. Legal doctrines, as expressed in written court decisions, are more precise and nuanced than is often vague legislative language. Since court personnel changes only slowly, actors in society come to expect that future rulings will resemble past ones and adjust their behavior accordingly. In one sense, "the law" is merely whatever judges are prepared to enforce, and it is the law in this sense that people try to follow when they don't want to be arrested, sued, or otherwise sanctioned. This, then, becomes the law whose rule we want judges to uphold -- the real, lived law according to whose dictates we shape our behavior and expectations -- rather than the ethereal, abstract law of the "lost constitution" or the "constitution in exile."

The only way to give real sense to the claim that standing by settled doctrines would be compounding a mistake would be to view the mistakes of the past as policy ones. Originalists tend to claim that strict adherence to what the Constitution once meant would produce a much more conservative (or, at times, libertarian with, shockingly, political libertarians and political conservatives tending to find precisely their preferred political philosophy in the lost constitution) policy environment than the one we have now. Insofar as abandoning economic laissez-faire was bad policy, it would, of course, be silly to compound that error. But that is a different debate, a debate about public policy rather than law -- and a debate in which the Republican Party has increasingly ceased to engage publicly out of fear of electoral catastrophe. The appeal to stand by original intent even when it varies with your policy preferences, however, is an appeal to the value of the rule of law, a value that is better preserved through adherence to precedent than through historical exegesis.

If the Bush years have demonstrated anything, it's that the small government agenda is going precisely nowhere through the political process. The temptation, then, has grown to try smuggle it in through the back door of the judiciary. Thus, a Republican planning document reveals the GOP's desire to avoid disclosing not just a nominee's "personal political views" but his "legal thinking on any issue." That's absurd. Nominees rightly hesitate to prejudge cases they may later be called upon to decide, but the people have a clear right to know what a nominee's approach to the law will be. Circuit Court judges generally try to adhere to precedent, because if they don't they'll be overruled. Supreme Court justices operate without a net and are free to ignore precedents when and if they so choose. As a result, it is vital to understand what role a nominee sees for precedent in making decisions. Should they be given no weight at all, à la Thomas, should they be adhered to strictly, or are there certain circumstances when they may be set aside? Thomas slipped onto the Court after bizarre confirmation hearings in which he denied having an opinion on all sorts of clearly relevant issues that no legal thinker of any merit could possibly have ignored. Democrats have a duty to try to stop that from happening again.

Matthew Yglesias is a Prospect staff writer.

By Matthew Yglesias
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved

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