Last Friday, Justice Antonin Scalia delivered the Henry J. Abraham Lecture at the University of Virginia law school. In defending his constitutional methodology of originalism, Justice Scalia started with a classic joke. I'll paraphrase: Two hunters find themselves being chased through the woods by a bloodthirsty bear. The heavier one starts to huff and puff, and finally turns to the other and wheezes: "I don't think we're going to be able to outrun him!" The second hunter, jogging just ahead, replies: "I don't need to outrun him; I only need to outrun you!"
Scalia's point is that it's not his responsibility to prove that textualism or originalism are perfect constitutional theories. It's enough for him to demonstrate they are better than the alternative. And the alternative, says Scalia, is for a justice to "make the law what he thinks it should be." His parable of the Bear, the Hunters, and the Originalist reminded me of what Scalia does so well that liberal constitutional thinkers can't always manage. Where he is pithy and clear in his prescription for judicial restraint, they get all tangled up in an effort to make their own jurisprudential theory sound perfect. Perhaps in advance of what is shaping up to be a galactic fight about President Obama's next Supreme Court nominee, liberals should take Scalia's adage to heart and content themselves just to outrun the other guy. In other words, maybe there is no time like the present to tell the country about the hazards and pitfalls of the conservative theories of originalism and textualism and the cult of balls-and-strikes-ism that has taken over the American jurisprudential debate.
The public conversation about the judiciary in recent decades has often conflated a broad fear of unelected judges with a clear definition of what judges should do. In the wake of the Jackson Pollock-style jurisprudence of the Warren Court, anxiety about overreaching judges morphed into a widespread sense that judges simply do too much. Conservative groups happily pushed the line that liberal judges were all merely unelected "activists" bent on "legislating from the bench." But this says little about how a judge should decide cases and much about our fear of the bench. Originalism and textualism aren't the only way to constrain judges, but they dovetail nicely with the idea that if you confine yourself to what the framers would want, you can't make as much of a mess with the yellow paint.
That's how judicial "activism"—a word we all should acknowledge is meaningless—turned into a catchall term for judges who did anything one didn't like. They were, after all, acting. It's only in recent years that we've discovered that the opposite of an "activist" judge is, in fact, a deceased one.
When John Roberts captured the hearts of America during his confirmation hearing, with his language of "minimalism" and "humility" and "restraint," he brilliantly reassured Americans that at his very best, he would do just about nothing from the bench. This pledge was shored up by a complex web of doctrines guaranteed to ensure that, in case after case, his hands were tied. Long before he was tapped for a seat at the high court, Roberts had written approvingly of efforts to cabin judicial power, including his efforts in 1984 to promote court-stripping legislation, to circumscribe the reach of Title IX, and to stiffen standing requirements for access to courts. Since becoming chief justice, Roberts and his colleagues on the court's right wing have continued to resolve cases by narrowing the authority of courts to solve problems. The Roberts court has worked to ensure that it's harder for women to bring gender-discrimination suits and harder for elderly Americans to sue for age discrimination. It's ever harder for those affected by pollution to prevail. Last term was the worst ever for environmental cases at the high court.
Reviewing these trends at the Roberts court last spring, Jeffrey Toobin concluded that
[t]he kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.