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The Kavanaugh Hearings Were a Missed Opportunity—For Both Sides

In Humanities, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, Politics, The Supreme Court on September 12, 2018 at 6:45 am

This article originally appeared here in The Intercollegiate Review.

By now you’ve heard about the combative spectacle that was last week’s Senate Judiciary Committee hearing for President Trump’s nominee to the U.S. Supreme Court, Judge Brett Kavanaugh. This momentous event was characterized not by political acumen, wit, cunning, or prudence, but by partisan obstruction, lawlessness, tantrums, hysteria, ignorance, frenzy, and anger.

Protestors screamed vulgarities and trite slogans, proving they were not interested in Kavanaugh’s responses or in substantive intellectual debate. Seventy of them were arrested on Tuesday alone. If anything, their recurring interruptions and crude histrionics gave Kavanaugh time to pause and think about his responses rather than tire out and let down his guard.

Online left-wing rabble-rousers peddled an absurd conspiracy theory about Zina Bash, a former clerk for Kavanaugh—only shortly before right-wing conspiracy theorist Alex Jones was banned from Twitter. Senator Cory Booker, a Democrat from New Jersey, publicly released documents that were allegedly confidential, claiming full knowledge of the possible repercussions of his act—namely, expulsion from the Senate. “Bring it,” Booker taunted Senator John Cornyn, who warned about the consequences of the supposed confidentiality breach. With unintended levity, Booker announced his “I am Spartacus” moment. Only the documents weren’t confidential after all; they’d already been approved for public release. Thus, Booker’s Spartacus Moment was merely a political stunt of faux bravery.

Why this hostility? Why these shenanigans?

A Deep Philosophical Clash

For starters, the midterm election cycle is upon us and the Mueller investigation appears to be nearing an end. Politicians like Booker are grandstanding for political gain as they consider running for president. Kavanaugh has been tapped to replace Justice Anthony Kennedy, moreover, who was the court’s so-called swing vote, whereas Justice Gorsuch filled Justice Scalia’s seat. Gorsuch’s appointment did not tip the balance of the court the way Kavanaugh’s might. Democrats also remain angry that Republicans did not act on President Obama’s nomination of Merrick Garland.

But something more is going on. We’re witnessing a philosophical clash regarding the proper role of the judiciary.

Kavanaugh identifies as an originalist and a textualist. Originalism comes in different permutations, having evolved since the days when it sought principally to recover the original intent of an author or authors. Its most prominent adherents today see it as an interpretive approach to the original public meaning of a text. It maintains that the words of the law should be construed according to their ordinary meaning as understood by a reasonable person at the time they were enacted.

Textualism, similarly, interprets words without resort to extratextual factors such as authorial intent or legislative history, focusing instead on the ordinary meaning of words as written. For the purposes of this piece, I use the term originalism without drawing distinctions between it and its close cousin textualism.

Getting Kavanaugh’s Originalism Wrong

Originalism so described seems uncontroversial on its face, but you wouldn’t get that impression from activists who have opposed Kavanaugh’s nomination. “Originalism conflicts sharply with American reality and American ideals,” writes Alan Brownstein, a retired law professor. He labels originalism “unamerican,” saying it accounts for the views of “only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted,” not for the views of the “vast new diversity of the American people today.”

This, I think, is wrong. Originalism properly understood is depolarizing, isolating judges from the political process rather than injecting them into it. The Constitution contemplates internal modifications, chiefly through the amendment process, which is, by design, difficult to facilitate. If originalism limits changes in law to those processes contemplated in the Constitution, as Brownstein alleges, then Brownstein has inadvertently labeled the Constitution “unamerican.” How can this founding document, which sets forth the basic framework of government for the United States, be “unamerican”?

Brownstein seems to imply that the amendment process, being slow and onerous, should not be the sole avenue for reform—that the courts ought to be a driver of progress when legislative solutions stall. The implication here is that the Constitution ought to be a “living” document that can be updated or improved through judicial correction and adaptation in cases. Judges should, accordingly, exercise quasi-legislative powers, promulgating binding rules and opinions to achieve justice or equality or to align with evolving standards of decency.

5 Reasons Everyone Wins with Originalism

Here’s why Brownstein is mistaken and why now more than ever a commitment to originalism would benefit both the left and the right.

First, originalism does not guarantee a particular political result. As Scalia, one of the original originalists, remarked, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” Scalia sometimes reasoned to conclusions that favored Democratic or liberal policies because the operative text so required.

Second, originalism fosters trust in democratic systems. Legislatures and the public need to know that newly enacted laws stand a chance to last as long as they comport with the Constitution. People lose confidence in their governing institutions if they believe the laws they passed can be easily tinkered with or discarded by unelected and hence unaccountable judges.

Third, although originalism may lead to harsh results in certain cases, it leaves it to the collective wisdom of the people, acting through their representatives, to alter the law to achieve fairness or justice. Concentrating revisionary lawmaking power in one judge or group of judges increases the probability that an uncommon or idiosyncratic conception of justice that does not represent the conception of the people will become binding over them.

Fourth, originalism makes the law clearer and more predictable, not subject to the unpredictable or arbitrary considerations of a judge or group of judges. When the law as written is applied, parties to a case and the general public can with reasonable sureness predict a range of possible outcomes. But if judges do not apply the law as written, the range of possible outcomes multiplies to the extent that the law itself becomes uncertain, and parties cannot rely on the law when they make everyday decisions. Vagueness in the law causes arbitrary exercises of governmental power. Clarity in the law restrains government actors from exercising powers in a manner that has not been formally approved by the legislature.

Finally, originalism ensures the independence of the judiciary. Kavanaugh has insisted that he is an independent judge. Democrats may dispute that claim, but they can’t dispute that originalism itself operates to secure judicial independence. Originalism is nonpartisan and does not consistently yield results that can be easily classified as conservative or liberal. Even jurists on the left have embraced originalism. Justice Kagan famously declared, “We are all originalists now.”

A week after politicos and activists celebrated the bipartisan spirit of Senator John McCain, the Kavanaugh hearings broke down into partisan pandemonium. Originalism should have been a unifying feature of the Kavanaugh hearings. It wasn’t. So here we are today, approaching the midterm elections in a country that’s as divided as ever. God help us.

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Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

The Law is Above the Lawyers

In Arts & Letters, Book Reviews, Conservatism, Humanities, Jurisprudence, Law, Legal Research & Writing, Literary Theory & Criticism, The Supreme Court, Writing on October 3, 2012 at 8:45 am

Allen Mendenhall

This review appeared here in The American Spectator.

Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson West, 2012)

Do not let its girth fool you: Reading Law by U.S. Supreme Court Justice Antonin Scalia and legal writing guru Bryan A. Garner is an accessible and straightforward clarification of originalism and textualism.* A guide for the perplexed and a manual of sorts for judges, this book presents 57 canons of construction. Each canon is formatted as a rule — e.g., “When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent” — followed by a short explanation of the rule.

Frank H. Easterbrook, who provided the foreword to the book, submits that originalism is not about determining legislative intent, but construing legislative enactment. In other words, originalists interpret as strictly as possible the words of the particular text and do not look to the earlier maze of political compromises, equivocations, and platitudes that brought about the text. Each legislator has unique intent; projecting one person’s intent onto the whole legislative body generates a fiction of vast proportion.

That the process of enacting a law is so rigorous and convoluted suggests the importance of adhering closely to the express language of the law; legislators, after all, have taken into account the views of their constituents and advisors and have struggled with other legislators to reach a settlement that will please enough people to obtain a majority. A judge should trust that painstaking process and not overturn or disregard it.

Originalism involves what Stanley Fish, the eminent Milton scholar and literary critic turned law professor, has called “interpretive communities.” That is the very term Easterbrook employs to describe how judges should account for cultural and communal conventions at the time a text is produced: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words.”

To be sure, the original meaning of a text — what reasonable people living at the time and place of its adoption ordinarily would have understood it to mean — is never fully accessible. The meanings of old laws are particularly elusive. When a judge can no longer identify the context of a law by referring to dictionaries or legal treatises available when it was promulgated, then he should defer to the legislature to make the law clearer.

Judges should not impose their interpretative guesses onto the law and, hence, onto the people; nor should judges make new law on the mere supposition, however reasonable, that a text means something that it might not have meant when it was written. “Meaning” is itself a slippery signifier, and it is in some measure the aim of this book to simplify what is meant by “meaning.”

The book is not all about grammar, syntax, and punctuation. It has philosophical and political urgency. The authors propose that the legal system is in decline because of its infidelity to textual precision and scrupulous hermeneutics. A general neglect for interpretive exactitude and consistency has “impaired the predictability of legal dispositions, has led to unequal treatment of similarly situated litigants, has weakened our democratic processes, and has distorted our system of governmental checks and balances.” All of this has undermined public faith in lawyers and judges.

Scalia and Garner, who recently teamed up to write Making Your Case: The Art of Persuading Judges (Thomson West, 2009), proclaim themselves “textualists,” because they “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Most of us, they say, are textualists in the broadest sense; the purest textualists, however, are those who commit themselves to finding accurate meanings for words and phrases without regard for the practical results.

Consequences are the province of legislators. A judge ought to be a linguist and lexicographer rather than a legislator; he or she must be faithful to texts, not accountable to the people as are elected officials. (Leaving aside the issue of elected judges at the state level.) The authors seem to be suggesting that their approach needn’t be controversial. Originalism and textualism are simply names for meticulous interpretive schemes that could lead judges to decisions reflecting either conservative orliberal outcomes. One doesn’t need to be a fan of Scalia to appreciate the hermeneutics in this treatise.

Never have we seen a plainer, more complete expression of originalism or textualism. Reading Law could become a landmark of American jurisprudence, numbered among such tomes as James Kent’s Commentaries on American Law, Oliver Wendell Holmes Jr.’s The Common Law, H.L.A. Hart’s The Concept of Law, and Lon L. Fuller’s The Morality of Law. Although different from these works in important ways, Reading Law is equally ambitious and perhaps even more useful for the legal community, especially on account of its sizable glossary of terms, extensive table of cases, impressive bibliography, and thorough index.

Every judge should read this book; every lawyer who cares about law in the grand sense — who takes the time to consider the nature of law, its purpose and role as a social institution, and its historical development — should read this book as well. If Scalia and Garner are correct that the general public no longer respects the institutions of law, then this book is valuable not only for revealing the root causes, but also for recommending realistic and systematic solutions.


* Originalism and textualism are not the same thing; this review treats them as interchangeable only because Judge Easterbrook’s forward uses the term “originalism” whereas Scalia and Garner use the term “textualism,” but each author appears to refer to the same interpretive approach.

The Problem with Legal Education; or, Another Piece About the Aimlessness, Pointlessness, and Groundlessness of Law School

In Arts & Letters, Humanities, Law, Legal Education & Pedagogy, Pedagogy, Teaching, Writing on July 27, 2011 at 2:23 pm

Allen Mendenhall

The latest issue of Academic Questions (Summer 2011: Vol. 24, No. 2) devotes most of its content to legal education.  Published by the National Association of Scholars, Academic Questions often features theme issues and invites scholars from across the disciplines to comment on particular concerns about the professoriate.  (Full disclosure: I am a member of the NAS.)  Carol Iannone, editor at large, titles her introduction to the issue “Law School and Other Tyrannies,” and writes that “[w]hat is happening in the law schools has everything to do with the damage and depredation that we see in the legal system at large.”  She adds that the contributors to this issue “may not agree on all particulars, but they tell us that all is not well, that law school education is outrageously expensive, heavily politicized, and utterly saturated with ‘diversity’ mania.”  What’s more, Iannone submits, law school “fails to provide any grounding in sound legal doctrine, or any moral or ethical basis from which to understand principles of law in debate today.”  These are strong words.  But are they accurate?  I would say yes and no.

Law school education is too expensive, but its costs seem to have risen alongside the costs of university education in general.  Whether any university or postgraduate education should cost what it costs today is another matter altogether.

There is little doubt that law schools are “heavily politicized,” as even a cursory glance at the articles in “specialized” law journals would suggest.  These journals address anything from gender and race to transnational law and human rights.

But how can law be taught without politicizing?  Unlike literature, which does not always immediately implicate politics, law bears a direct relation to politics, or at least to political choices.  The problem is not the political topics of legal scholarship and pedagogy so much as it is the lack of sophistication with which these topics are addressed.  The problem is that many law professors lack a broad historical perspective and are unable to contextualize their interests within the wider university curriculum or against the subtle trends of intellectual history.

In law journals devoted to gender and feminism, or law journals considered left-wing, you will rarely find articles written by individuals with the intelligence or learning of Judith Butler, Camille Paglia, or Eve Sedgwick.  Say what you will about them, these figures are well-read and historically informed.  Their writings and theories go far beyond infantile movement politics and everyday partisan advocacy.    Read the rest of this entry »

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