Eric Posner has a lovely and pungent post entitled, Why originalism will fade away, on his blog. Here is the money paragraph:
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.
Posner has put his finger on a key question concerning the relationship between politics and jurisprudence. Theories, like originalism, have two audiences (at least at the surface level). The immediate audience for theoretical scholarship of all kinds is the legal academy. Scholars try to convince each other and via such influence to reach law students who eventually become lawyers and judges. Jurisprudential entrepreneurs attempt to engineer the propagation of their ideas in various ways: writing articles, teaching classes, arguing with colleagues, workshopping papers, blogging, writing op/eds, and the list goes on.
James Thayer wrote The Origin and Scope of the American Doctrine of Constitutional Law in 1893. It has only been cited on six occasions by the United States Supreme Court. The first citation did not come until 1932, almost 40 years after it was written and 30 years after Thayer's death. Ronald Coase wrote The Problem of Social Cost in 1960. It has been cited once by the Supreme Court in 1975. Neither Thayer nor Coase was writing for the Supreme Court; they were writing for the ages, for what the master rhetorical theorist Chaim Perelman called "the universal audience."
Originalists are well aware that there is considerable resistance to originalism as a constitutional theory. Powerful forces were mustered in favor of living constitutionalism in the New Deal era; its triumph is largely due to the transformational presidency of Franklyn Delano Roosevelt. Roosevelt's insistence that almost every federal judge and justice be committed to the New Deal established the paradigm for ideological selection of judges that Posner assumes is a necessary feature of our political life. Ronald Reagan had a different vision of judging and when Edwin Meese became his Attorney General in his second term that vision was translated into political action, including the appointment of Antonin Scalia, who ascended to the Supreme Court in 1986.
Scalia's keen intellect and forceful rhetorical style had a transformational effect on the configuration of jurisprudential space. Before Scalia originalism was "off the wall" and after only a few years, it was "on the table." Strong forms of originalism are still very much the exception and not the rule, but Scalia (and scholars who built on his legacy) had a powerful effect on the jurisprudential gestalt. In the early 1980s, it would have been almost unthinkable for any originalist to be appointed to the federal bench. In the opening decades of the twenty-first century, judicial nominees of even a a very progressive President are likely to affirm that "we are all originalists now" and even the author of an article entitled "Originalism Is Bunk" may feel compelled to announce that almost all constitutional theorists accept that original meaning ought to be considered as at least one substantial factor in constitutional discourse.
As I write these words, I am more than 30,000 feet in the air, flying from Washington, DC, where Justice Scalia lies in state at the Supreme Court, to San Diego, California, where every year scholars gather for what is known as "OWiP"--the 7th Annual Originalism Works-in-Progress Conference. At that conference, I will be presenting "The Constraint Principle"--a work in progress that argues for the proposition that constitutional practice should be constrained by the original public meaning of the constitutional text. OWiP grows every year, with an increasing presence of young and sophisticated originalist scholars. I am amazed.
Am I writing for the eight Justices who currently sit on the Supreme Court? In small part, yes, but without illusions about the likelihood of immediate influence. Perhaps Justice Thomas will pick up an idea or two. Perhaps a left-of-center Justice will do a better job making some originalist point. But I harbor no illusions that a 60,000 word law review article will move the Supreme Court next term or five, ten, even twenty terms from now. Such movement takes time. A shift in the jurisprudential gestalt from our realist era that embraces nakedly ideological judging to an invigorated rule of law that takes stare decisis, statutory texts, and original meaning seriously seems likely to take decades.
The remarkable thing about Justice Scalia is that he moved the Court so far so fast. This did not happen in a vacuum; it could not have happened without a supporting political infrastructure. But it did happen. The long range consequences of the gestalt shift initiated by Justice Scalia are too distant to see clearly now. I take solace in the words of Justice Holmes--Scalia's ideological opposite but perhaps the only Justice who has a claim to best Scalia as a rhetorician and intellectual force. Here are the words from his inspiring essay, The Profession of the Law:
No man has earned the right to intellectual ambition until he has learned to lay his course by a star which he has never seen — to dig by the divining rod for springs which he may never reach. In saying this, I point to that which will make your study heroic. For I say to you in all sadness of conviction, that to think great thoughts you must be heroes as well as idealists. Only when you have worked alone — when you have felt around you a black gulf of solitude more isolating than that which surrounds the dying man, and in hope and in despair have trusted to your own unshaken will — then only will you have achieved. Thus only can you gain the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought — the subtile rapture of a postponed power, which the world knows not because it has no external trappings, but which to his prophetic vision is more real than that which commands an army.
Antonin Scalia earned the right to intellectual ambition; he lay his course by a star of which others could not dream. Let me close with the immortal words of Buddy Holly:
I'm a-gonna tell you how it's gonna be
You're gonna give your love to me
A love to last a-more than one day
A love that's love - not fade away
A well, a-love that's love - not fade away
Not fade away, Nino, not fade away.
