Originalism? Living Constitutionalism? Who Cares?

Conservatives are ecstatic to have Amy Coney Barrett on the Supreme Court, but have you considered what makes a judge “conservative”? Is it the results they reach or the methods they use to make a decision? Conservative judges promise that they are wedded to a process of constitutional and statutory interpretation and follow that process to the outcome no matter what that outcome is. They maintain that they would never, ever, start from wanting a certain result and work backwards from it seeking reasons for that favored result. No, no. They merely use neutral legal interpretive tools in a consistent manner to reach their decisions about the constitution and the laws. They apply originalism, original public meaning, textualism or some other text-based method to tell us what the constitution and laws allow or forbid. (I have written about methods of legal interpretation several times including on August 22, 2018, Originally it was not Originalism – AJ’s Dad (ajsdad.blog), and on March 24, 2017 Originalism to Textualism – AJ’s Dad (ajsdad.blog).)

          I suspect that most of us, however, don’t give a hoot about the analytic methods used by the Court. Few of us could explain the methodologies. We are concerned with the results. I thought of this a few years ago when the Supreme Court held that firing a gay or transgender employee violated a federal statute that prohibits employment discrimination “because of . . . sex.” The opinion was written by Neil Gorsuch, a conservative favorite. Gorsuch’s analysis relied on what is called textualism, a method championed by Antonin Scalia and other conservative jurists. I am simplifying somewhat, but the method basically says that the statutory words should be applied as written. So, Gorsuch reasoned that if a man is fired for having sex with a man when a woman would not be dismissed for having sex with a man, then the firing is discrimination based on sex. If a woman were fired from a job when a man would not be, it is sexual discrimination. Thus, if a man is fired from a job when a woman would not, that is also sexual discrimination. Gorsuch reasoned that the dismissal of a man because he has sex with another man when a woman would not lose her job for having sex with a man violated the statute.

          A conservative outcry ensued. Some conservatives discussed Gorsuch’s methodology and concluded that he had misapplied textualism, but many others merely decried the outcome without discussing the majority’s analytical method. They felt that a result that furthered the so-called “homosexual agenda” had to be wrong no matter how the decision was reached. They cared about the outcome, not the methodology. But I think that liberals were similar. They cheered the outcome but did not care about the method used to reach it.

          I thought of this again when the recent Supreme Court term ended. The Court rendered two decisions on its last day. Almost immediately I received an email from a right-wing group praising one of the decisions: “Today, the U.S. Supreme Court issued an important decision in Americans for Prosperity v. Bonta, a donor disclosure case with direct implications for religious liberty. In its 6-3 ruling, the Court held that a California law requiring the disclosure of donor names is unconstitutional.” The notice from this religious group continued, “Forcing charities to hand over and make their donor information public is unconstitutional—and it’s also very dangerous. Coupled with the toxic ‘cancel culture’ that’s all around us, government having at its fingertips a compiled list of religious people and/or those who support faith-based groups is a recipe for disaster. The ability to associate with others of like mind is indispensable to freedom. We’re very pleased that the Court recognized the disclosure of names and addresses of citizens simply for donating to a cause is chilling to the freedom of association—including the freedom to associate with, join and donate to the faith-based organizations that are near and dear to us.” (This group was clearly wrong when it thanked me “for generously supporting” it and labeled me a “courageous” supporter. I am on their email list only because I requested a free copy of the Constitution from them, which they generously supplied.)

          The point here is not to discuss whether the Supreme Court decision was correct but rather to emphasize that these words of praise are for the outcome of the case, not for the methodology that led to the result. There was no mention of the conservative buzzwords of originalism, original public meaning, or textualism.

          On the same day, the Supreme Court also decided that changes to Arizona voting laws that made it more difficult for some voters to cast a ballot did not violate the Voting Rights Act even though the Arizona measures had a disproportionate effect on minorities. I have read some good commentaries contending that the conservative majority was not properly reading the text of the statute, but was, in effect, rewriting the law which forbids all changes in voting law with a disparate impact on minorities, while the Court decided that the disparate effects were so small that under the Voting Rights Acts they did not matter  Others, however, without addressing the Court’s methodology, simply placed a Jim Crow label on the decision.

          I felt something similar when I watched a documentary about Ruth Bader Ginsburg a few years ago. The movie presented her inspiring life story and claimed that as a lawyer and judge, she helped move the law in directions that many approve of. But the film did not begin to explain her analytic methods or how her methodology may have been the appropriate way to examine constitutional questions. She was a heroine to many not because of her methodology but because of the results that she reached.

          In short, many on both the right and the left have little interest in the analytic methods the Supreme Court uses. They are concerned only with the outcomes.

ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad (ajsdad.blog). But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.