At Law & Liberty, John McGinnis, Entrenching the Culture of Originalism. From the central point:
… Confirmation hearings … provide a rough but useful measure of where the nation is jurisprudentially. In this case, they have shown that originalism is becoming our law, even if its precise contours are still open to debate.
…
When asked about her judicial philosophy, Judge Jackson stated that “The adherence to text is a constraint on my authority. I’m trying to figure out what those words mean, as they were intended by the people who wrote them.”
Hers was a concise statement of originalism. Indeed, these words capture in shorthand form the two requirements with which Professor Larry Solum has defined originalism. The first is the fixation thesis: The meaning of the words is to be determined at the time of enactment. The second is the constraint thesis: A judge is constrained by the meaning of those words.
Now it might be thought that Judge Jackson bobbled her description a bit by confusing public meaning originalism (“adherence to text”) with original intent originalism (“as they were intended by the people who wrote them”). But it is possible to take a charitable reading of that aspect of her answer. As Mike Rappaport and I have argued, it is entirely possible that the intent of the Framers was to follow the rule of interpretation at the time of enactment. And those rules privileged the text over intent. Or as Chief Justice John Marshall said about constitutional interpretation: “the intention of the instrument must prevail and …this intention must be collected from its words.”
At another point in the hearing, Jackson said that the Court itself has “clearly taken the historical perspective, the originalist perspective” in its constitutional analysis. Here she was implicitly embracing the positive law claim for originalism—that we should be originalists because it is the law. That assertion exceeds one that I would make, because the Court has often failed to use originalist methods, making it less clear what constitutional law is, even if originalism remains a contender. But her affirmation is performative. Because she says originalism is the law, it is more likely to be true in the future.
And from later on:
Except in cases where the language is clear and there is no precedent, a future Justice Jackson can wiggle out of much of her commitment to originalism. Nevertheless, her decision to fly the originalist flag is important, contrary to the claims of some.
First, there have been consequential cases in the past where the language is clear, and yet the Court has not followed it. Judge Jackson will be constrained by her remarks in such cases. This point is clear from recent history in debates about the Constitution. For instance, when originalism had largely disappeared from legal discourse in the 1960s, left-liberals argued that the Constitution contained welfare rights.
Second, even if she evades these commitments, her public statement at the hearing contributes to a culture where originalism grows ever more respectable. As a result of its respectability, scholars will write more articles exploring the original meaning of clauses. These will be translated into briefs and oral arguments at the Supreme Court.
The legal jurisprudential culture matters. The reasoning of Roe v. Wade was only possible in a jurisprudential culture that did not put the meaning of the text front and center. Of course, not everyone will agree on what constitutional provisions mean, but a culture of originalism assures that such empirical debates, rather than appeals to values, will settle the law.
I'm very skeptical that Judge Jackson will be constrained by her remarks (or that any nominee would be constrained by anything said at the confirmation hearings). But the subsequent point is the key one, and I completely agree. What matters is originalism's place in the legal culture, and that is much advanced by her decision to embrace rather than contest it.
RELATED: At NRO Bench Memos, Ed Whelan: Kagan (Plus Seven) Versus Breyer on Statutory Interpretation. From the introduction:
[The Supreme Court's recent ruling] in Badgerow v. Walters on an arcane issue under the Federal Arbitration Act displays a sharp divide between the textualism of Justice Kagan’s majority opinion and the pragmatism/purposivism of Justice Breyer’s dissent. …
In her majority opinion, Kagan explains that the “distinctive [statutory] language” on which the Court rested a 2009 ruling on Section 4 of the Federal Arbitration Act is missing from the provisions (Sections 9 and 10) at issue in this case. She faults the lower courts and Justice Breyer for concocting a “uniformity principle” that would require that those provisions be read like Section 4: “We have no warrant to redline the FAA, importing Section 4’s consequential language into provisions containing nothing like it.”
He adds:
[Justice Breyer in dissent] acknowledges that the majority’s reading “may be consistent with the statute’s text,” but he objects that it “creates what I fear will be consequences that are overly complex and impractical.” His own reading, he maintains, is not foreclosed by the statutory text and promotes “simplicity, comprehension, workability, and fairness.” Plus, he argues, it’s reinforced by the FAA’s legislative history. And here is how he ends his dissent:
I suggest that by considering not only the text, but context, structure, history, purpose, and common sense, we would read the statute here in a different way. That way would connect the statute more directly with the area of law, and of human life, that it concerns. And it would allow the statute, and the law, to work better and more simply for those whom it is meant to serve.
Posted at 6:53 AM