Academic journal article Law & Society Review

An Original Look at Originalism

Academic journal article Law & Society Review

An Original Look at Originalism

Article excerpt

While the normative debate over originalism continues unabated (e.g., Scalia 1997; Whittington 1999), the systematic empirical validity of originalism lies relatively unexamined. Using data derived from briefs filed by litigants over eight years, we developed an initial systematic test of the influence of arguments about text and intent on the decisions of U.S. Supreme Court Justices. Typically, we find that Justices support textual or intentional arguments when they are made by liberal parties or when they are made by conservative parties, but not across the board. Multivariate analyses show that legal arguments as to text, and particularly intent, have little impact on the votes of even those Justices alleged to be originalists. Instead, ideology continues to explain their decisions.

I. Introduction

More than 40 years after Herbert Wechsler's (1959) search for neutral principles to guide constitutional interpretation, 30 years after Robert Bork's (1971) demand for the same, 15 years after Attorney General Edwin Meese's (1986) call for constitutional interpretation based on the narrow intent of the framers, and William Brennan's (1986) classic response, scholars (Whittington 1999) and judges (Scalia 1997) continue to debate the normative merits of what has been called interpretivism (Ely 1980), preservativism (Carter 1985), and now originalism (Symposium 1996).1

Our purpose in this article is not to try to answer whether the Justices of the Supreme Court should base their decisions on the original meaning of the text or the original intent of the framers. Instead, we would like to open systematic inquiry into the question of whether the Justices of the Supreme Court do base their decisions on the meaning of the text and the intent of the framers.

Needless to say, this question not only implicates normative theories of judicial decisionmaking but also empirical theories. Scholars commonly assert that Justices on the Supreme Court act like "single minded seekers of legal policy" (George & Epstein 1992:325), attempting to etch their policy preferences into law. Nevertheless, the extent to which Justices choose to act in such a manner and the extent to which they can realize their goals by acting in such a manner is the subject of much debate. As Gibson famously notes, 'Judges' decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do" (1983:7).

The extent to which Justices choose to follow their policy preferences continues to divide the fields of law, courts, and judicial politics. Team (Kornhauser 1995), constitutive (Kahn 1994), role-theoretic (Gibson 1991), and even rational-choice (Ferejohn & Weingast 1992) scholars argue that judges and Justices may be strongly influenced by legal factors. Typically, discussion about what Justices ought to do include evaluating legal rules, such as precedent or legislative intent, in a (non-mechanical) attempt to find the "correct" answer to cases before them (see, e.g., Dworkin 1986). Thus, in addition to preferences, various models suggest that legal influences should be useful in explaining Supreme Court decisions.

Similarly, rational-choice theorists question what it is feasible for Justices to do. Voting their sincere preferences may not, in many cases, further their policy goals. Because the Court does not make policy in isolation from the other branches of government, the Justices must temper their decisions by what they can do (Eskridge 1991; Epstein & Walker 1995; Ferejohn & Shipan 1990; Spiller & Gely 1992). Most importantly, a policy-minded Court must ensure that Congress does not overturn its statutory decisions.

These models can be usefully depicted according to the schematic in Table 1. Sources of influence include legislators and judges. When the Justices rely on the rulings of past judges, they are following precedent; but when Justices follow their own (present) preferences, they behave attitudinally. …

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