David Bernstein and Randy Barnett have interesting posts up at Volokh about the growing split among conservative originalists. Barnett’s post came first and he notes that when conservatives today invoke the idea of “judicial restraint” in opposition to judges “legislating from the bench”, they are in fact buying in to a New Deal era concept that spawned the idea of a presumption of constitutionality. He quotes from an endorsement of Alito’s nomination in the Weekly Standard pointing out that Alito is not a Thomas-style originalist but a pragmatist who defers to government greatly:
More importantly, Judge Alito’s Casey opinion shows him to be faithful to the judicial duty not to “legislate from the bench,” an overused phrase which means simply that judges should go the long mile before substituting their views for those of the people’s elected representatives.
This view of the role of judges was perhaps the New Deal’s most bipartisan achievement. The departures from it during the heyday of the Warren Court produced friction among the liberal Justices appointed by FDR (notably between Douglas and Frankfurter), as well as controversy with a new generation of conservatives who saw the New Deal-type of rational basis test as key to preserving the democratic accountability of public decision-making. Conservatives felt odd, and still do, defending a New Deal doctrine (and being attacked for it from the left). But this particular New Deal doctrine is an established tradition with bipartisan support, and Judge Alito’s Casey dissent show him standing squarely within it. Nothing could be more mainstream.
He also goes on to note that the split between Scalia and Thomas in Raich, where Scalia upheld the power of the Federal government in a clearly non-originalist opinion while Thomas stuck to his originalist principles and dissented, may bring conservative originalism to a crossroads. David Bernstein picks up on that idea and goes further, saying that conservative originalism is in fact in crisis:
Randy’s post reminded me that I’ve been wanting to note that conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia’s “fainthearted” originalism. If Justice Scalia, originalism’s supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one’s own land for consumption on one’s own farm can be regulated under Congress’ power to regulate “interstate commerce”), then what is left of originalism?
One could say that it’s simply “too late” to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia’s fainthearted originalism begins to look a lot like, “I got into this business to overturn Warren Court decisions, and I’ll use originalism as tool to that end, but I’m not especially interested in reconsidering New Deal precedents.”…
I expect that Scalia’s problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible (In Raich, Randy certainly provided Scalia with some easy ways to distinguish Wickard, but I suspect Scalia felt that Wickard should either be interpreted rather broadly, or overturned entirely, and he opted for the former). But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of “faintheartedness.”…But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won’t do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That’s culture war politics, not originalism, and Scalia’s failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.
I would argue that the problem goes even deeper than that. The Scalia/Bork version of originalism will always find itself in this quandary because, applied consistently, it reaches some truly disturbing results. So they have to put it away sometimes and pretend that they’re not putting it away. If they left room for an appeal to the broad principles of natural rights, as the Thomas version of originalism does (or better, as the Barnett/Gerber version of liberal originalism does), they would find a way out of that conundrum. As long as they refuse to allow the Declaration to be used as a lens through which to view the Constitution, this sort of contradiction is inevitable.