CONSTITUTIONAL INTERPRETATION IS EASY FOR PRAGMATISTS!

The U.S. Supreme Court’s reputation is like the situation comedy, Night Court. There is chaos. But it’s not funny. This blog post argues that pragmatism, plus the other tools of interpretation, gets the Court closest to the best case decision.

Recent contradictory originalist decisions are problematic. The Court in United States v. Rahimi moved away from its rigid originalism in New York State Rifle Association v. Bruen. Justice Barrett and Justice Thomas clashed in Rahimi, with Barrett taking the more flexible approach. Indeed, the Court must do something given its declining reputation.

Then there are situations where women have died under the Court’s new abortion doctrine. After 30 years clerking, teaching, and practicing in constitutional law, I believe the closest the Court can come to a good result is to adopt a two-stage practical method. At stage one, the Court would examine modalities like text, precedent, originalism, structure, ethics, and more. But at stage two, the Court would engage in an open-minded, inductive, transparent, contextual, and empirical determination of which result makes the most sense. The Justices would also balance the interests of the two sides as part of this analysis.

Admittedly, the pragmatic result would usually prevail, but not always if some other modality scored very high. To put it bluntly, the Supreme Court is deciding “cases or controversies” and law is a practical science. The Court should therefore seek the best concrete result and use the finest possible method for getting there.

Pragmatism is also a uniquely American approach as evident from William James and John Dewey. Of course, the Justices will disagree along the way, including about which result is most pragmatic. But the Court would avoid the medieval, formalistic and syllogistic, debates over originalism that can’t justify Brown v. Board of Education, and that can’t protect women using the Fourteenth Amendment. Instead, the Justices would account for all major modalities, and focus on the one leading to superior results, often pragmatism. To the extent this seems subjective, it’s called judging.