Why originalism will fade

Most law academics write scholarship with the hope and expectation that their work will influence public policy. Not all of them—it is possible to write good scholarship that advances knowledge but has no immediate application to policy. But such scholarship is pretty rare in the legal world.

Many judges complain that law professors don’t write for them—for the judges. I’ve always thought that this complaint was exaggerated, but it is true that many law professors, perhaps most, write for a broader audience, including regulators and legislators, and the broader policy community that, sooner or later, might bring their ideas to the attention of people with power. In the end, the goal is to get something done. Citation of one’s work in judicial opinions, legislative history, regulatory documents, and the like, is thrilling validation that one’s ideas are not completely useless.

This brings me to originalism. The audience for originalist scholarship—and I mean the audience with the power to use originalist scholarship to change people’s behavior and thereby to validate the importance of the scholarship—consists entirely of nine people: the justices of the Supreme Court. (Okay, and also their clerks). Legislators don’t care about originalism. Regulators don’t care about originalism. Not even the lower courts care about originalism.

With Scalia gone, only one originalist justice remains—Clarence Thomas. The other seven justices don’t care about originalism, at least not in the sense that Scalia did. They do not champion originalism. They may be receptive from time to time to arguments about the original understanding of this or that clause, but they clearly don’t think of such arguments as dispositive or even particularly weighty. Those arguments are, at best, allowable arguments.

Supreme court litigants must now decide whether to fill precious space in their briefs with originalist arguments. Maybe they will do so, to get Thomas’ vote. But Thomas’ originalism is, by all accounts, idiosyncratic and unpredictable. And the other justices are unlikely to make originalist arguments in their opinions to attract a vote from Thomas, who increasingly goes his own way.

President Obama will not try to replace Scalia with an originalist. This we know. What if the next president is a Republican? I doubt that a Republic president will expend any political capital to try to appoint an originalist. History shows that hardly any presidents make appointments for such narrowly ideological purposes. Just consider the record of Bush II, Bush I, and even—aside from the Bork fiasco and Scalia himself—Reagan, who appointed the stalwart non-originalists, Sandra Day O’Connor and Anthony Kennedy. Presidents are concerned above all with an appointee who will not interfere with their political agenda.

It’s true that presidents are under pressure to appoint ideologues. And as we see from Ted Cruz, the word “originalism” remains an important political code word. But a Republican president will not be under pressure to appoint an originalist; he will be under pressure to appoint someone who is likely to overturn Roe v. Wade and uphold gun rights. It’s simply irrelevant whether this person is an originalist or not. Indeed, a sincere originalist is not as politically dependable as someone with strong conservative political values which he will use to resolve legal disputes. Sincere originalism could lead in any number of directions (for example, overturning Citizens United). A conservative federal judge with strong prior experience working in a Republican administration would be a far safer choice than, say, an academic (like Scalia himself) who cares about ideas.

Where does that leave the growing community of legal academics who identify themselves as originalists? They will continue to have an audience for their work—themselves. But if, as I suspect, the Supreme Court gradually stops citing originalist scholarship, that audience will no longer be enough to motivate them.