Response to Jack on the Warren Court

Slate's blog on legal issues.
May 13 2008 12:04 PM

Response to Jack on the Warren Court

Jack's recent post suggests a good task for science-fiction authors who write counterfactual histories—eliminate the Supreme Court's power to strike down statutes as unconstitutional and rerun history. No Brown v. Board of Education and no Dred Scott v. Sandford . No Roe v. Wade and no United States v. Morrison . No Gideon v. Wainwright and no Schechter Poultry Corp. v. United States . Would we wake up in North Korea or Sweden?

Because I am a fan of Jack's partisan entrenchment theory that extended majorities entrench their policy preferences by ensuring that ideological allies are appointed as Supreme Court justices, I am uneasy about his commitment to a (non-Scalia) style of originalism that directs those same justices to draw on the principles underlying founding materials. If Jack's entrenchment theory is correct, then Republicans will make sure to appoint people who will either (1) adopt a methodology that produces conservative outcomes, or (2) manipulate legal materials in order to produce conservative outcomes. Democrats will appoint people who will do the same, albeit in the liberal direction. Each party can plausibly argue that if the other party uses the Supreme Court to advance its policy goals (as Jack's theory predicts), then it can't be criticized for doing the same. It's hard to see what role Jack's theory of originalism would play in this scenario, except as rhetorical cover that the liberals could use to counter Scalia's version of originalism.

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Or, at least, this seems to be the likely outcome if Jack is right that not even Scalia can bring himself to comply with his own theory when it generates outcomes he does not like on political grounds. While I have no doubt that Jack applies his own version of originalism honestly (see his discussion of the gun-control case), I see no reason to believe that a liberal justice who adopted Jack's theory would do the same—again, especially if Jack is right that Scalia does not apply his originalist methodology honestly. And given the ambiguity of Jack's theory, even relative to Scalia's version of originalism, the pressure on liberal justices who adopted it to avoid advancing policy goals would be correspondingly diminished.  Indeed, liberals, if no more honest than Jack's Scalia, might welcome Jack's theory as the cover they need to advance their policy goals without saying that that is what they are doing. That was the point of my earlier post, and I did not mean to single out the Warren Court, except to point out that it continues to loom large as a bête noire in the imagination of the conservative "base," much more than Lochnerism seems to loom in the liberal imagination, which is why Democrats are having such a hard time putting together a politically useful judicial philosophy.

We can also use Jack's entrenchment theory to answer our historical counterfactual. If he is right, then we would have seen greater policy variance over time (at least, at the national level) but not any great difference in the policy "mean." This doesn't seem particularly worrisome. We'd be neither North Korea nor Sweden, but America—in 2008, on the verge of a significant move to the left, a move we can expect, in our real world, the current conservative Supreme Court majority to block or slow down.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.