Thursday, March 5, 2020

The Empire Strikes Back Against Originalism

But the legal and opinion establishment is decidedly not originalist, and it is striking back at all these sources of influence. First, a committee of federal judges whose membership leans heavily against originalism, has circulated a draft opinion (discussed in more detail here by Ed Whelan and here by Mark Pulliam) suggesting that judges cannot be members of the Federalist Society because it may call their impartiality into question. The opinion observes that membership in the Federalist Society “could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”

But the Federalist Society takes no positions on any legal or legislative matters. And in fact, members can be found on both sides of divisive legal issues, like same-sex marriage. Confirming that it is taking sides in favor of the establishment, the opinion says that judges should continue to be permitted to be members of the ABA, although the ABA does take positions on such divisive issues, like abortion.

Second, in my admittedly subjective sense, since sometime before Trump’s election, law schools have become less willing to hire originalists than they once were, despite the increasing importance of originalist arguments in the courts. When originalists were exotic outliers, an originalist scholar or two on the faculty did not seem threatening and could perhaps be fun to spar with. But precisely because originalism now has substantial political influence, the overwhelmingly left-liberal academy often retreats to its ideological battlements. As a result, no one has been hired in the past six years at any T-14 school who does originalist constitutional law, and very few have been hired even at much lower ranked schools, despite the strong crop of young originalists.

But perhaps most representative of the growing establishment pushback on originalism is the appearance of Emily Bazelon’s full-length article in the New York Times Magazine, the house organ of the liberal establishment, attacking originalism. The concern expressed at the end of the article—that originalism is even making inroads with liberals—suggests that the piece is an attempt to keep the virus from spreading.


John McGuinnis.

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