Posted Monday, May 12, 2008, at 12:25 PM
Before I respond to Orin's thoughtful post, let me back up to Dahlia's diagnosis for a second - a diagnosis that I think amounts to saying that conservatives have been broadly more successful than progressives in persuading folks that originalism is the right way to approach constitutional interpretation, and/or in making this aspect of the judicial role a voting issue in their party's favor. I'm hardly a pollster, but I'm not sure I buy this take.
A little Googling turned up, for example, this nationwide Quinnipiac poll from last summer finding that an essentially identical proportion of Republicans and Democrats ranked Supreme Court appointments as a very important factor in their presidential voting decisions. Now on the other hand, the poll also showed originalism gaining (and living constitutionalism declining) in popularity as between the two interpretive approaches since 2003. But the gain/loss was in the 4 percent to 5 percent range—a modest recent trend if that. (It's also interesting that even in 2007, a higher percentage still favored taking account of changing times over pure originalism—and to the extent the living constitutionalists are losing support, it's both to the originalists and almost equally to the undecideds. I would no doubt be reading too hopefully into the poll to note as well that interest in originalism was increasing just as the current administration was straying further and further 2003-07 from the original separation of powers we'd known and loved.)
But let's assume for a minute that trend is real - that people are inclining more toward originalist interpretation than they did back in 2003. Hard to say (beyond Scalia's raw mediagenicity) what's behind this. I tend to agree that part of it must be lack of a catchy, coherent alternative message—the presentation of which is, to be fair, always far more challenging for the party not in power. My guess is it's also made more complicated by the lingering willies many lawyers (including moderates in both parties and arguably a higher percentage of liberals) get from Orin's suggestion that the way to win appointments and influence courts "is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours?"
I know whose world I'd want to live in. The thing is, in addition to freedom from Scalia's social vision, that world also includes an interest in the quaint idea (not to repeat myself) that there's still any distinction between law and politics. Orin may be right that a results-driven message sells better than even a divinely packaged theory; indeed, I'd wonder if what attracts at least some to "originalism" is not the method but the substantive image of some simpler time it conjures. But I bet I'm not alone in balking at the idea of pitching an approach to legal interpretation as all about the results.