River on the Originalists

Apologies for the lack of posts. The past few days have been exhausting--and I haven't been getting the sleep I need. It's too bad too, because there were some things I wanted to blog about in the news yesterday. But, alas.

Anyway, I give you this quickie to tide you over.

All the time, we hear conservative judges and judicial nominees, trying to rationalize decisions harmful to civil rights, women, or minorities, by saying its what the law required. Of course, that isn't technically accurate--if it were that clear, there wouldn't be a controversial case in front of them, and no angry liberals blasting them from dissent (or majority, whichever). So the more precise argument would be that it's what their interpretive philosophy of the law requires, and they believe that philosophy (generally originalism or strict textualism) is binding to them.

Whenever I hear an argument on those lines, I'm reminded of the following passage from (yes, I'm a geek) the final episode of "Firefly" ("Objects in Space"):

River: You hurt people.

Early: Only when the job requires it.

River: Wrong. You're a bad liar. [...] You like to hurt folk.

Early: It's part of the job.

River: It's why you took the job.

It seems so blindingly obvious that the conservative tail is wagging the interpretive dog when it comes to these rulings. Originalism doesn't just "happen" to lead to bad results for the politically disenfranchised, and judges who become originalists don't make that choice ignorant or even saddened by that fact. It's not just "part of the philosophy," it's why they chose the philosophy. Alito doesn't hold fast to his Casey opinion because it's what his legal philosophy dictates. He holds his philosophy because it allows him to justify outcomes like Casey.

While judges do occasionally express remorse at an outcome they claim they were "forced" to reach (see Justice Thomas in Lawrence v. Texas, Justice Stevens on Kelo), these cases are few and far between. In Derrick Bell's words, they are "contradiction closing cases," the ones where judges prove how impartial and unbiased they are--the cases everyone can point to as a response to charges of the courts playing politics. However, CCCs rarely have a major impact on law as we know it--they are by definition anomalies and will stay that way absent a major political shift of consciousness. It is the rarest of the rare when a judge will break from a position s/he is deeply invested in because s/he thinks that's what the law requires. Justice Thomas may have been willing to allow legal sodomy, but I doubt he would have lost much sleep over it's continued prohibition. But in cases where "the law," or even "the interpretive philosophy" clearly cuts one way, but the judges politics another, it is extraordinarily uncommon for a judge to stay consistent. Consider Justice Scalia on Affirmative Action or the Religion Clause--in both cases, he's been roundly criticized for taking positions wholly at odds with what his normal originalism requires.

I'm not going to say liberals are different--liberals select interpretive theories because they believe they will produce a judiciary more in line with their values. What I'm saying is that conservatives need to stop playing this shell game where they pretend like they are making decisions based on the clear mandate of "law" and that all the awful consequences are unforeseen but tragic necessities. It just isn't true.