Reapportionment, Originalism, and Supreme Court Nominees

The most troubling aspect of the politicization of the Senate confirmation process for me is its undermining of legal theory. I generally applaud the discussion of legal issues in confirmation hearings because I find it hard to tolerate the alternative, which is the anti-democratic rule by judges who too often base their decisions on nothing more than their own policy preferences. But there is a downside to public involvement in judicial selection, too, and the ideal of “law” suffers to the extent that the people exact concessions from nominees that they will not reach results that are too unpopular.

Most Americans, I suspect, are attracted to a considerable extent to the idea that judges should not change the Constitution to suit their policy preferences or their assessments of the needs of modern society. “Legislating from the bench,” in other words, strikes a chord with many Americans. But while society may agree with this abstract proposition, society really does not care about abstract propositions. Instead, it cares about results, and to the extent that coherent theory is inconsistent with favored case outcomes, it is the theory that is thrown overboard.

If any Supreme Court nominee were to admit openly that he is an originalist and accordingly views Griswold, Roe/Casey, Gideon, Mapp, Miranda, etc., as wrong, he would stand little chance of confirmation. I suspect (but hope otherwise) that even if he were to say that he would follow existing precedent because of stare decisis, the Senate would defeat the nomination. It has unfortunately become something of a requirement that nominees not only agree to acquiesce in popular past decisions, but that they think they were right when decided.

The Alito hearing will feature many of these sorts of discussions, I am sure, but it was Senator Grassley’s questions today concerning the reapportionment decisions that precipitated this post. Judge Alito’s 1985 job application, recall, expressed dissatisfaction with the Warren Court’s reapportionment rulings. “One-person, one-vote” has now become a well accepted mantra, recognizable far beyond the legal community. But there is no question, as the dissenting opinions in Baker v. Carr, Wesberry v. Sanders, Reynolds v. Sims, et al., convincingly demonstrate, that those decisions are inconsistent with the original understanding of the Constitution.

Today Judge Alito reiterated his view that the one-person, one-vote principle was taken too far in subsequent cases, but did not challenge the correctness of the original decisions. To be sure, one should not pick an unpopular fight, and perhaps Judge Alito truly believed then and/or believes now that Reynolds and other “first-generation” reapportionment cases were correctly decided. But to the extent he does, he is no originalist. (Judge Alito has not claimed to be an originalist, I hasten to mention, but I think his failure to criticize these cases indicates the political judgment that adopting originalism’s application in that issue would be disastrous.) And if we cannot get an originalist with this President and this Senate, the cause of originalism is lost. We will still get Justices whose views on issues coincide with originalism, but at best we will get “faint-hearted originalists” who abandon theory when convenient, and at worst we will get judges who view themselves as completely unconstrained by theory.

Adherents of the evolving Constitution risk a different problem. Conservatives will certainly criticize particular results, but a judge who favors the evolving Constitution can reach a whole range of results and maintain fidelity to his or her interpretive theory. Originalism is constraining, or is supposed to be, to a degree that evolutive theories are not. Accordingly, I don’t think we face the prospect of excluding living constitutionalists from the Court to the degree we may exclude originalists from it.

One of the most important lessons I try to impress on my students is one I learned early in law school: theory matters. Judges reaching decisions based on no more than that they feel one result is correct is the antithesis of law. Distinctions between cases must make logical sense. Rationales — holdings — govern future cases. But the Senate is ensuring the end of principle on the Supreme Court by focusing on particular results rather than interpretive method. We may be doomed to be governed by O’Connor-style judging.

UPDATE: Judge Alito himself has accepted the task of walking in Justice O’Connor’s footsteps (hat tip to Howard Bashman):

“‘I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication,’ Alito told the Senate Judiciary Committee on his fourth and final day of confirmation hearings.”

It is, of course, polite to say nice things about the Justice whom one is replacing, and given Democrats’ incessant praise of Justice O’Connor it is probably politically astute. Still, I find it a sad commentary on contemporary America that judging in the O’Connor style is viewed as a positive characteristic.

UPDATE 2: Professor Sam Issacharoff’s testimony to the Committee relating to the reapportionment decisions can be found here.

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6 Responses

  1. Will Baude says:

    Doesn’t Michael McConnell– clearly an originalist, I had thought– argue that the first generation reapportionment cases are probably rightly decided, but under the Republican Form of Government clause (which he thinks ought to be justiciable)?

  2. washerdreyer says:

    I’m not an originalist, but I fail to see how being one entails opposing Mapp.

  3. Simon says:

    Can anyone offer some citations on the point raised above about McConnell’s view of the reapportionment cases? I’d be interested to read further on that one.

  4. Simon says:

    I agree with washerdreyer about Mapp. In my view, once one accepts incorporation – by whichever means one reaches it, legitimate or not, and most originalists do accept incorporation – the result in Mapp becomes fairly obviously correct. As I previously commented:

    I do not agree that doctrinal discussion can overrule the explicit text of the Constitution or its amendments . . . [but] I have no objection to doctrine filling the gaps in the Constitution; it is, after all, “a constitution that we are expounding.” I have no objection, therefore, and for example, to Weeks v. U.S. (and even Mapp v. Ohio), where the Court created binding doctrine which is [necessary or appropriate] to giving teeth to the safeguards of the Constitution.

  5. Mike Dimino says:

    In response to Simon’s first point, interested readers should read McConnell’s “The Redistricting Cases: Original Mistakes and Current Consequences,” 24 Harv. J.L. & Pub. Pol’y 103 (2000). Even if McConnell is correct (and McConnell is an outlier in thinking that the Guarantee Clause is judicially enforceable), it does not mean that the Court was correct to ground the reapportionment cases on the Equal Protection Clause and Article I, Section 2 (providing that the House of Representatives should be chosen “by the People of the several States”).

  6. Simon says:

    Even if McConnell is correct (and McConnell is an outlier in thinking that the Guarantee Clause is judicially enforceable), it does not mean that the Court was correct to ground the reapportionment cases on the Equal Protection Clause and Article I, Section 2

    Well, two thoughts to offer in reply to that. First, virtually every theory starts out as an outlier, and given what I understand to be the current state of Constitutional law in much of the academy, I think being an “outlier” theory should be worn as a badge of honor.

    Second, in response to the point that “it does not mean that the Court was correct to ground the reapportionment cases”. It seems to me – and I’m halfway through reading a paper that makes essentially the same point – that Originalism has a problem with stare decisis, because it has no generally-accepted framework for the application of stare decisis. (I find Justice Thomas’ complete disregard for precedent troubling, but it is far more coherent – both internally and against other aspects of Originalist theory – than Justice Scalia’s patchwork approach, which I will admit is excessively discretion-conferring for a Justice who makes much of non-discretionary judging). If originalism is to avoid being a theory which “knows how to die, but not how to govern” (that is, a gloriously irrelevant academic concept, rather than a practical tool for judges to use), it must account for stare decisis in a cohesive and internally consistent manner, either by rejecting it outright, or by explaining in the most specific terms possible when it is applicable and when it is now. That is to say, with so many non-originalist precedents on the books, the theory must offer an approach on what to do with those theories.

    My own view, previous offered here, is that the starting point for determining whether or not a precedent carries the weight of stare decisis is (and must be) whether or not that case was correctly-decided. However, the standard I would suggest – and the relevance I think this has to Mike’s point – is not “would I have joined the majority opinion,” but “would I have concurred in the result, on one ground or another”? Seen that way – and this is the reason I’m interested to read McConnell’s paper – what I’m saying is that even if the reapportionment cases were decided on entirely grounds, they should not be overruled (even if they are not expanded, per Bob Bork’s conception of limitation of effect) as long as there is some reasonable, correct and originalist grounds on which they could be upheld. Thus, even if the equal protection argument is completely phoney, if one could demonstrate that the same result can be reached though the republican form of government clause, that precedent should not be overruled.

    This has obvious import when we contemplate any number of stare decisis or commerce clause precedents, which originalists are usually charged with being out to overturn. That is, if a case turned on incorporation via substantive due process yet could be upheld via P&I incorporation, it should be upheld.