Originalism as Identity

Last Thursday night at a conference at the University of Florida devoted to originalism attended by lawyers, academics, students, federal judges, and the entire Florida Supreme Court, Judge William Pryor, the Chief Judge of the 11th Circuit, gave the keynote address. He told the audience that he had been on the bench for several decades, that he is and always was an originalist, that he had written hundreds if not thousands of decisions, but that he only had to “wrestle with the original meaning of the Constitution in four cases.” 

He also said that “inferior” courts such as his are bound by non-originalist Supreme Court cases until the justices change them, and that most of his job in the constitutional arena is to apply Supreme Court precedent. He used the word modest repeatedly to describe the proper mindset for federal judges. 

I thought it fascinating that one of the most famously originalist judges in the country, who self-identified that way long before it was cool to do so, said he almost never actually has to apply originalism at work. 

Then we talked about originalism for the entire conference.

I spent a day and a half hobnobbing with and listening to self-identifying originalist judges, law professors, and lawyers. I have been writing about originalism for a long time, but I had a new or at least semi-new revelation about the subject based on my personal interactions. I'll hold that observation for the end of this post.

Below I discuss interesting things that occurred during the conference. I want to make clear that it is a positive and wonderful thing for state and federal judges to mix it up with students, lawyers, and law professors. I thank the organizers for inviting me and for putting on such an important conference.

At one point, I stopped the room a bit with this observation: 

Virtually every judge here has identified as a strong textualist and thought it important to say so. Let’s test it. Our keynote speaker prosecuted Judge Roy Moore for refusing to remove the Ten Commandments from his courtroom. The law Moore violated was the First Amendment, which begins, 'Congress shall make no law….' I conceded incorporation but asked: how do we get from Congress to a state judge (or governor)?

The room went silent and things were tense for a minute. Then the moderator of that panel and co-host of the conference Gary Lawson said he agreed with me 100%, and we moved on. The alleged textualists were stumped (some think there are ways to get there through the 9th amendment and the Privileges or Immunities Clause, but courts have never taken that route). So far judges have just assumed that thorny textual problem away.

During my panel, I made the following observation: “does anyone in this room really believe that Justices Scalia and Thomas or Justices Ginsburg and Marshall or Judge Pryor were open minded about affirmative action before they ever heard a case on the subject?" I asked this because Judge Pryor stuck to his guns about the originalist case for color-blindness despite Professor Mitch Berman's excellent questions to him showing there is, in fact, no originalist case for color-blindness.

No one responded to my question, which was not surprising, but the law professor moderator did an excellent job of rephrasing the inquiry in a more polite way. He turned to the panel and said "this question is only for the judges, not for the two academics and the lawyer on the panel." He asked the judges what they do about the problem of motivated reasoning. He said that all human beings are subject to it but as judges you are supposed to put your priors aside and try to decide cases without taking into account your own personal biases and prejudices. 

The federal trial judge on my panel, with whom I had many interesting conversations over the course of the conference, and whom I liked a lot, said that motivated reasoning is "never" a problem for him because he simply looked at the facts and the law and made his decisions without bringing his priors into play. I’ll just leave that there.

The Chief Justice of the Florida Supreme Court was on my panel and said that he is an originalist but the history part of constitutional interpretation is only one aspect of judging. There are usually other factors at play as well that he and other judges must consider.

I responded by saying that Professor Berman made the important observation long ago that to be an "originalist" must mean either originalism is your dominant or exclusive mode of constitutional interpretation; otherwise you are just a pluralist for whom original meaning is just one of many factors. (In the real world all judges are pluralists, of course). 

The Chief Justice did not respond to my point, nor did anyone else. But the reality, as the Chief Justice implicitly conceded, is that judges who self-identify as originalists know that history in most cases cannot provide persuasive answers to most constitutional questions and to decide cases they must look to other factors as well.

An interesting pattern at the conference was the many times the one non-originalist Florida justice (out of seven) who constantly dissents strongly from that court’s decisions spent most of the conference with his head in his hands looking quite pained. I sat with him at dinner and felt bad for him.

Much of the conference was devoted to how originalism works in practice, but over and over it was clear that the judges rarely had to deal with the topic and when they did, other factors played into their final decisions. Yet, their faith in originalism was genuine, strong, and constant. It was a large part of their professional and personal identities. 

And that is the important point I have noticed before but really saw this weekend. Originalism is today an identity and a way to signal one's politics. There are exceptions, like Jack Balkin and Akhil Amar, but that's what they are, exceptions. In fact, my friend Professor Chris Green, a sincere and thoughtful originalist, sat next to me on my panel and when I said that to be an "originalist" one simply must believe in strong judicial deference, which very few if any of today's originalist judges actually do, Chris said that I was "100% right." 

Speaking of Chris, he brought four or five copies of the Constitution with him, displayed them proudly, and said, "Akhil Amar says you should always have more than one copy of the Constitution on hand." The crowd laughed when I responded that Akhil also wrote a very long book called, "The Unwritten Constitution."

Originalism is now to a great degree identity politics and tragically that makes it even harder to fight. To advance as a judicial conservative in America today, one must identify as an originalist regardless of what that actually means. If one criticizes the doctrine, it is often perceived as a criticism of the person who believes in the doctrine as much as a comment on constitutional interpretation.

To return to Judge Pryor, where I began this blog post, he mentioned several times that constitutional law is still mostly non-originalist (contrary to the wildly implausible arguments made by Steve Sachs and Will Baude), and that non-originalist law is the one he must apply. He seemed to miss the irony of an argument that suggests originalism is the only proper method of constitutional interpretation but since the founding it has rarely been used by the Supreme Court and thus rarely used by the lower courts. Judge Pryor is many things (some very critcizable) but he is obviously quite smart and yet he can't see the implausible nature of his argument. His identity is wrapped up in the label originalist, not the substance of the doctrine, as the color-blindness example shows. It should be remebered that only Justice Thomas resorted to originalism in SFFA v. Harvard, and it was such shoddy work that no other justice joined his opinion.

I fear that originalism as identity is a generalizable observation. The well-meaning and extremely polite and friendly judges I met at this conference could no more shed their originalist identities than they could shed their religious identities. No amount of logic or unanswerable questions could or likely will shake their faith. 

I sensed this in 2018 when I wrote my book "Originalism as Faith," but there I was focusing mostly on the Supreme Court and a few famous academics. Six years later, originalism is doing most of its work in personnel decisions, not court holdings, and in helping form legal identities and careers for conservatives and libertarians. The personal nature of what originalism has become requires a different strategy for those of us committed to fighting against that doctrine.

Unfortunately, I have no idea how to do that. I hope others do.