Introduction
This is the third in a series of posts commenting on Michael Dorf's How Determinate is Originalism in Practice?. Part One is here and Part Two is here. This post is about the study that Dorf relies on in his original post:
Indeed, it would be astounding if an honest effort to unearth the original understanding of various constitutional clauses from the Founding and Reconstruction yielded the contemporary Conservative program--which reflects the peculiar mix of anti-regulatory business interests, social conservatism on gender relations, and white resentment of racial minorities that characterizes the current, highly contingent, Republican Party coalition. One would expect some overlap and even some net positive correlation given that there is some positive correlation between small-c conservatism and big-c Conservatism. But the sheer messiness of history and contemporary politics would mean that an honest originalist voting his or her methodological rather than ideological druthers would end up roughly center-right on average, with a high degree of variance.
Is that what we find when we examine the data? Not even close. When political scientists code for ideological valence of the issues that come before the Supreme Court, they find that the mostconsistently ideologically conservative justice is Clarence Thomas--who also most consistently espouses and purports to practice originalism. (Justice Gorsuch would likely be his twin but has not been on the Court long enough for a substantial dataset.) Here's a useful chart that I've lifted from a Stanford Business School website:
The link that Dort provided is to website that describes a paper by Stephen Jessee and Neil Malhotra. The actual paper is titled "Public (Mis)Perceptions of Supreme Court Ideology A Method for Directly Comparing Citizens and Justices": the paper appears in 77 Public Opinion Quarterly 619 (2013).
Jessee and Malhotra's study is not about compliance with originalism by Supreme Court Justices. Instead it is about the question whether the public accurately perceives the ideology of the Justices. The paper is quite interesting, and I recommend it.
The study has what seems to me to be an ingenious design. The authors surveyed the public on their reactions to ten Supreme Court cases, and then compared their evaluations to the actual decisions of the Court. Here is how they describe their methodology:
We asked respondents to report how they would have voted in ten recent Supreme Court cases (see online appendix A for question wordings). All items were presented as dichotomous choices, similar to the outcomes of Supreme Court cases.5 We chose ten cases decided by the Court under Chief Justice John Roberts that covered a diverse set of important issues and that could also be explained to respondents in a reasonable number of words.
The values that Dorf relies upon were based on the votes by the Justices in these ten cases--although the authors say that similar values would obtain with a larger sample. Here is Table 1 which presents the list of cases.
Two of the cases were decided on nonconstitutional grounds. That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues. Dorf's argument is that their ideology scores in all ten cases are inconsistent with what one would expect from "honest originalism"--because Dorf has an intuition (without any empirical grounding) that "honest originalism" would have produced scores further to the left than those that appear in the chart that Dorf included in his post (which is presented above in his post).
In my first post in this series, I pointed out a problem with relying on votes by originalist Justices who are members of collegial court. The dynamics of the Court require compromise, and an originalist Justice may vote to join a nonoriginalist opinion without explanation. Moreover, Justice Scalia believed that the original meaning of the Constitution could be trumped by precedent. Many of this votes in the eight cases are based solely on conventional doctrinal analysis, without any consideration of original public meaning. Justice Thomas has described his position on precedent as less deferential than Justice Scalia, but he has explicitly stated that he decides many constitutional cases on the basis of precedent: I head him say words to that effect in May of this year when the Georgetown Summer Seminar on Constitutional Originalism met with Justice Thomas at the Supreme Court.
Of the eight cases that are consitutional in nature, only five following involved originalist reasoning by Scalia or Thomas. Here is a quick run down of the cases.
Citizens United v. FEC: The majority opinion by Justice Kennedy has the following passage: "
Justices Scalia, joined by Justice Thomas, wrote a concurring opinion that addressed Justice Stevens dissent and elaborated on the originalist case that speech by corporations was not excluded from the scope of the First Amendment freedom of speech.
United States v. Comstock: Justice Thomas wrote an originalist dissenting opinion on the question whether the Necessary and Proper Clause authorized civil commitment of sexually dangerous persons. He was joined by Justice Scalia.
McDonald v. Chicago: Justice Alito's opinion did cite originalist evidence about incorporation of the Second Amendment, but primarily relied on an approach based on precedent, rejecting the originalist Privileges or Immunities Clause theory offered by petitioners. Scalia joined Alito and indicated in oral argument that he would not overrule the Slaughterhouse Cases and incorporation under the Due Process Clause for reasons of precedent. Justice Thomas's concurring opinion provided the Fifth Vote on the basis of an originalist analysis of the Privileges or Immunities Clause.
Salazar v. Buono: Justice Scalia wrote a concurring opinion in which Justice Thomas joined. The concurrence relied on precedent-based standing analysis and made no mention of originalism.
Crawford v. Marion County: Justice Scalia filed a concurring opinion joined by Justice Thomas that was based on precedent.
Baze v. Rees: Justice Thomas wrote a concurring opinion joined by Justice Scalia that concluded that the majority's test for "Cruel and Unusual Punishment" was not supported by the original understanding: Thomas argued that the original meaning of cruel was limited to punishments "deliberately designed to inflict pain."
Parents Involved v. Seattle: Justice Thomas filed a concurring opinion that was based on precedent and did not discuss original meaning.
Gonzales v. Carhart: Justice Thomas filed a concurring opinion that reiterated his view that Roe v. Wade was wrongly decided on originalist grounds and noting that the parties did not argue that the Partial Birth Abortion Act exceeded Congress's power under the Commerce Clause.
Of the eight constitutional cases in the Jessee and Malhotra study, only five involved originalism. Three were decided on the basis of precedent. I haven't looked at the briefs, but I would be surprised if the three cases involved significant "original public meaning" briefing.
The Small N Problem
Let us assume that the ideology scores for Scalia and Thomas would have been the same if the three nonconstitutional cases and the two constitutional cases in which originalism did not play a role were excluded. Can we reach Dorf's conclusion, that Scalia and Thomas vote more conservatively than would be expected on the basis of "honest originalism" on the basis of a sample of five cases? Moreover, Dorf's argument is based on generalization from the behavior of two Justices? Can we generalize about originalist judges in general based on a sample size of two?
The question answers itself. A sample of two justices in five cases is simply too small to warrant any empirically valid generalizations about the question as to how originalist judges will behave in general.
Dorf's Assumption that the Ideology Scores for Justices Scalia and Thomas Were Too Conservative
In addition to the small N problem, there is a second reason to question Dorf's use of the Jessee and Malhorta study. Dorf simply assumes that the ideology score of a fair-minded originalist judge would be to the left of the scores that Jessee and Malhorta's study assigned to Scalia and Thomas. This assumption appears to be based solely on impressionistic guess or intuition by Dorf. There is no empirical basis for this assumption.
Do the Cases Studies by Jessee and Malhorta Provide Direct Evidence of "Dishonest Originalism"?
Do any of the give cases studies by Jessee and Malhorta provide direct evidence of "dishonest originalism" on the part of Scalia and Thomas?
Two of the cases, United States v. Comstock and Gonzales v. Carhart involved the Necessary and Proper Clause. In both of the cases, the outcome of the originalist reading of the clause has disputable ideological implications. It is not clear that invalidating the federal statute providing for civil commitment of sex offenders is ideologically conservative. Invalidation of the Partial Birth Abortion Act would clearly not have been an ideologically conservative outcome. It might be argued that Justice Thomas's understanding of the Necessary and Proper Clause is incorrect, but it would be difficult to argue that it was dishonest and my sense is that most originalist scholars would largely agree with Thomas's position on the original public meaning of the clause. Perhaps John Mikhail's recent work will change that, but his work was not before the Court in these two cases.
In one of the cases, McDonald v. Chicago, Justice Thomas's originalist position--incorporation under the Privileges or Immunities Clause and overruling on originalist grounds--is supported by overwhelming evidence. Originalist scholars debate the exact scope of "Privileges or Immunities," but almost all originalists would agree that that scope includes incorporation of the Bill of Rights.
That leaves two cases where the original meaning might be fairly characterized as disputed from a public meaning originalist perspective: Citizens United v. FEC and Baze v. Rees.
Citizens United involved the original meaning of the First Amendment Freedom of Speech; that is a complex and much disputed topic, but I would be hard pressed to reach the judgment that Justice Kennedy's position in the majority (reiterated by Scalia) is dishonest. Much was made about the "original meaning of corruption" but from a public meaning perspective, I have never seen how that was relevant.
Baze involved lethal injection and the Cruel and Unusual Punishment Clause. I do think that if John Stinneford's work is taken into account, one could argue that lethal injection is cruel (assuming it is very painful) and unusual (because it is a novel means of execution), but the Briefs for Petition made no attempt to make an originalist case. I have done cursory work on the meaning of "cruel" and I would not be able to reach the judgment that Justice Thomas's parsing (cruel is intentional infliction of pain) is "dishonest" and could not be reached on a fair reading of the evidence that was before the Court.
Even if we give Dorf the benefit of the doubt on Citizens United and Baze, the five cases simply do not support Dorf's conclusion.
Conclusion
Much more work would need to be done to provide a complete evaluation the five cases from the Jessee and Malhorta study in which originalism played a role. Many more cases and judges would need to be studies to provide rigorous empirical foundations for Dorf's claim. But I think it is clear that the study does not warrant Dorf's bottom line conclusion, quoted from the longer passage above:
[A]n honest originalist voting his or her methodological rather than ideological druthers would end up roughly center-right on average, with a high degree of variance.
Is that what we find when we examine the data? Not even close.
The empirical question that Dorf poses is simply not answered by the data he cites. "Not even close."
