In the final episode of Deep Dive, Will and Adam discuss the partisan politics of originalism. They discuss hot-button topics like: academic freedom, gun rights and the Second Amendment, marijuana regulation, same-sex marriage, and once again the Affordable Care Act.
In the final episode of Deep Dive, Will and Adam discuss the partisan politics of originalism. They discuss hot-button topics like: academic freedom, gun rights and the Second Amendment, marijuana regulation, same-sex marriage, and once again the Affordable Care Act.
Recorded February 22, 2021
Will Baude: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude, and you're listening to a special series we're calling Deep Dive where Professor Adam Chilton and I will take a deep dive into originalism. We recorded this series each week of our winter quarter over zoom in front of a "live" audience of students. So if there are things that seem out of context or don't make sense, that's why. Without further ado, let's deep dive into originalism.
We're here for our final episode of this conversation about originalism. We should think of all the ground we've covered and all the places where you ended up just coming back to where we started. But I think one of the big topics that we kept referring to and haven't had a chance to focus in on is politics, originalism, and its relationship to partisan politics.
Obviously, the moment you say originalism and most people think Republican, and there's a deep relationship there. The Republican party has appointed three Supreme Court justices in the past few years, all of whom self identified as originalists at their confirmation hearings. I am willing to... Well, I was going to predict about what will happen when President Biden nominates his nominees, maybe we should talk about that. But I think we should talk about this and maybe first start with just talking about whether there is a relationship and why that's true. And then we'll talk about whether that tells us anything about originalism. Is that the right order?
Adam Chilton: Yeah, sure. That sounds good. It's the right order to talk about this topic here. I'm curious to hear you discuss why you think there is or is not a relationship between politics? For me, it seems extremely obvious that the answer is yes. But I'm curious what the nuanced view that you'd like to suggest about this is.
Will Baude: Yeah, so I think empirically, it's clearly right, that right now, originalism is much more part of the Republican Party than it is part of the Democratic Party, if at all. Not all Republicans are originalists and lots of law professors like me are not Republicans or Democrats, but in terms of originalism, in the world of judges, or even attorneys general or whatever that seems to be, it seems to be there. So I don't totally understand the why it's happened is more interesting. So here are my thoughts. So this was not always true. So the first big 20th century battle over originalism is a battle between William Crosskey who used to be a law professor here. And Charles Fairman, who was a law professor at Stanford and Harvard and various places like that. And then on the court, it was the Felix Frankfurter versus Hugo Black. And the subject was did the 14th Amendment incorporate the Bill of Rights?
And there are hundreds of pages of so many court opinions going through what the framers of the 14th Amendment said and large articles going through it. And the more originalist side was the side in favor of incorporating the Bill of Rights, which was the liberal progressive racial justice side. So it doesn't seem that there's an obvious inherent relationship, although curious thing, correct me if that's wrong.
Adam Chilton: I think what happened more recently is, conservatives were looking for a way to explain what they thought was wrong with what the Supreme Court was doing. And for some reason, they wanted a theory. And I don't totally know why they wanted a theory, rather than just names for positions that were wrong, but they seem to want to theory. And originalism provided a good vehicle for criticizing things like Roe versus Wade, maybe things like affirmative action, maybe things like some of the sort of aggressive regulations of property and weird rules about wealth discrimination, and so on. So originalism was just like a useful language for them to start criticizing it. And then now it's become... Over time that that seemed to work, and it built a movement over time. So it's path dependence, starting with the fact that Republicans were out of power.
Will Baude: Okay, so I have a history of this in my brain that is not based on actual, I don't know, concrete research, and so it could be deeply flawed. So let me try telling you what I think the genesis of the relationship is, and you can tell me where the steps are incorrect.
Adam Chilton: Great.
Will Baude: Okay. So '50, '60s and early '70s, you have a Supreme Court in a period that is Warren Court era where it's issuing important decisions on school desegregation like Brown v. Board or Bolling v. Sharpe on criminal justice in cases like Gideon v. Wainwright, on voting rights and Baker V. Carr, and a range of topics on reproductive rights as we enter the '70s in Roe v. Wade, etc. And so you have a court that is seen as being weighing in on a number of culture, war issues, civil rights issues, etc. At a time where that's extremely contentious. At the same time that you have a court that's taking these positions, you have within the legal academy, the rise of the critical movement. And scholars that are moving away from doing just doctrinal work, and instead are doing more theoretical and more critical work.
So we have a range of legal scholars that are critical about what the court has done and impart the rise of sort of political theory, and people making arguments about like, what the nature of court should be, what the natures of constitution should be, etc. And many of those are perhaps more explicitly focused on redistributive goals, social goals, etc. And so you have all of both these legal movements and these academic movements that are pushing in the same direction. Then, at the same time roughly, and the same people, in the late '70s and early '80s, two moves. One is to revive and rebrand and breathe life into originalism. And that's I'm thinking, the late Justice Scalia, key figure in this. And then separately, the creation of the Federalist Society.
Now, obviously, the Federalist Society is not purely an originalist organization. However, you have a professional legal movement that's given birth at the same period by some of these same people, and a theory that's being developed. And the two end up going hand in hand. Because now if you are a right of center person, in the US legal academy... Sorry, in the US law school, starting the early '80s, there's an organization you can join, there's theory that you can adopt, and by participating in both of these things, and subscribing to them, you can get professional advancement. And I'm not saying that's the only reason it's appealing. But that's how we get the relationship between the two, the originalism and the conservative legal movement really go hand in hand. And that these ideas are both being pushed in the early '80s and FedSoc chapters take place across the country.
Adam Chilton: I think it's just linked at the jump there for these two things.
Will Baude: Yeah. I mean, I don't disagree with a lot of that. But I think there's still sort of a puzzle. So one particular sort of link missing from that story is Ed Meese. I think Ed Meese, Reagan's Attorney General, made the conscious decision to publicly promote originalism both in speeches, as well as what was going to be the brand or the Reagan Justice Department and in looking for whoever the judges, and that's how Professor Scalia becomes Judge Scalia, becomes Justice Scalia, as part of that conscious decision. And it's still a little bit puzzling why he did that. It could be because he just thought it was right. It could be because it for some reason delivered something that was important to the Republican Party's agenda.
I have a graduate student, I'm supervising Jurisdiction Committee, Calvin Tobique, who's trying to write a deep history of what it was that originalism gave the Republican Party that they needed that was worth being originalist, rather than why can they just be conservative activists like mirroring the liberals? It could be Steve Calabrese who was involved in the creation of the Federal Society and then goes on to work for Ed Meese during this crucial period. Although I think we need to know why does Ed Meese want Steve Calabrese to work for him, and why is he listening to him. So I feel it, there's still a little bit of a puzzle there about how this happened. But I agree that during the 1980s, there was a growth in the originalist movement in law schools from zero to 1%. And the Republican Party also decided it was good, and then at that point, there was not a good reason for them to split apart.
Adam Chilton: Now, I do think to be clear that there's an obvious structural reason that originalism should be more appealing to conservatives than liberals. It is not only, if you assume that part of being conservative is the view that, small-c conservative that our institutions, our culture, etc., should evolve slowly, that there's things that are of value of the past. And so that's just one set of things, then, obviously, a constitutional theory that explicitly tethers the role of the government, to the past is going to accomplish that goal, even before we get into any particular social or political goal, right? You might also have political goals or whatever, that have this thing, but just from the jump if we think what being conservative means, in some murky incense is about caution around social progress, originalism helps get you that.
Will Baude: So this is a point that our colleague David Strauss has made repeatedly and maybe you made it earlier this quarter. It maybe not, right? So to the extent that originalism is a weapon against precedent, which it often is. Having a rule of just judges who generally follow precedent and make changes on the extremely slowly that seems small-c conservative, having a rule that allows judges to reject 100 years of precedent, because they think they have the truer meaning of the constitution. I mean, it's kind of radical, right? I mean, that's one of the critiques that we started with, is the kind of radicalism built into the possibility of originalism.
Adam Chilton: Yeah, okay. So this is a good point. So here's actually, the radicalism that I actually think is what is sometimes frustrating with originalism which is this. I actually can see the value of the slow evolution of our legal system. And that we should be nervous about changing precedent too fast, and for a variety of reasons. But the originalist move of being willing to let's go back to 1840, or 1870, or whatever it is, a particular precedent comes from, that actually can be quite radical. Now, I think that's a different part of the appeal of originalism, which is... So one part of the appeal is linking us to the past. But I also think that in 1790, you had a small federal government that took relatively small sets of actions, relatively influential states.
And so if that's ultimately your goal is less regulation, smaller federal government, smaller state rights, I think, appeal to that with originalism and you can undo the growth of all of these changes that you think have been problematic. The rise of the Federal government's relative power over the states, the growth of the administrative state, the growth of deep regulation over private industry, laws that regulate how you can run your business, like anti discrimination laws, or health and safety regulations, whatever. You can just appeal to this original understanding as a way to repeal that. Now, of course, I'm sure that you and others would argue that some of those arguments that are used are more or less persuasive, but I do think that's part of the goal, is that a vision of what the country should be and originalism on average, not always, on average, might be a way to help you link to those arguments.
Will Baude: So I mean, I think that's right at some points in time. But I do think this is illuminating. I think this just shows why originalism's political appeal is so contingent over time. So like during the Lochner era, when judges were aggressively invalidating lots of regulations of business, there was a popular originalist critique of them. Like wait, where did this Lochner thing come from? Let's go back. Because if you went back to the founding or even to 1870, there weren't as much aggressive judicial review. So when the main topic was aggressive judicial review of progressive legislation, then the progressives had this vision of let's go back to the good old days when judges didn't do as much.
And then in the incorporation debate, or some of the 14th Amendment debates, it's sometimes if you're Black, you'd say, the 14th Amendment actually was supposed to incorporate a lot of rights. And then we quickly lost the courage to enforce them because of redemption on flicks land. Let's go back to the good old days, when the Federal government was willing to actually enforce rights against the states. There is things that appeal but which period people focus on what they see as its nostalgic aspect, actually has changed across different parties in different times. So what I wonder is, if we have a Republican court that does a lot of stuff people really start to hate. Well, there'll be a flip, well, people will start to say, this court is doing crazy stuff that even the founders would never have done. Let's go back to the founding, when judges didn't do all that crazy stuff.
Adam Chilton: Oh, yeah. So I do think that, that's right. I think that inherently that, again, this is all on average, right? There's going to be exceptions to everything. But I think on average that the originalist project and originalist methods would lead you to the conclusion that you can reverse a lot of government action and a lot of doctrine. And so if there's doctrine coming down, or government new statutes coming down, that you're not in favor of, you're going to on average, have ways to say that these are inconsistent with whatever the first Congress did, and whatever the scope of the government did at the time, because big changes or changes away from the status quo. So you can argue these are changes away from the status quo. And if the changes that the Supreme Court starts doing or, I don't know, being more tolerant of that...
I mean, the thing that's in the news now, states trying to like to purge voter rolls or whatever else, you can easily imagine if that's the state action that's taking place. And if the Supreme Court does, in fact end up supporting some of that, or if not supporting just at least saying it's not their business, I do think we'll see a call for, hey, there's instances during the reconstruction, for instance, where the federal government would try to invalidate some of these actions, why don't we go back to that?
Will Baude: Okay, so can we talk about the on average part? This is one of things that puzzles me is, maybe it's right if your only method for talking about constitutional law was to pick an existing constitutional theory, you would pick the one that on average was the closest to the views you wanted to realize? And if you're being instrumental about it. You pick the one the on average is better. So you'd say like, well, I've only got three choices, David Strauss, and Ronald Dworkin, and originalism, and on average originalism is most conservative stuff like that. But nothing constrains the political parties to working within the existing theories, or even using theories at all, right? You could just decide, we just want to do really conservative stuff. We don't need a theory.
And so my two part puzzle is, it seems to me like, for some reason the Republicans have decided that it's useful to have a theory, or at least a logo or something. And it seems to me that Democrats have decided the opposite. While there are living constitutional, there are lots of liberal constitutional theorists, it doesn't seem to be any real effort by Democratic partisan politicians to all get behind one and get the sort of veneer of academic respectability that comes with a label. They seem to think they don't need a theory. And that actually makes them accomplish their goals more directly, because they don't have to worry about trying to satisfy the theory. So am I right about that? And why is that, what's going on?
Adam Chilton: Oh, yeah. So I think this is about the respectability of the end political goals within elite circles. And just let's take a more contemporary example from this last decade, which is the very rapid rise of cases and judicial precedent recognizing the right to same sex marriage. And so, Windsor and Obergefell, etc. And this is, like a pretty big-c change to get from the Bowers decision through Lawrence, through Windsor and Obergefell, to have all of these changes in the way that the court and the legal system approach same sex rights. Now, if you are an elite law student, an elite lawyer, you live in Washington, DC, or New York or Chicago, big cities, through that entire period, you knew gay people, you worked with gay people, you taught gay people, etc.
And to make the case that I don't think that you should have the right to marry for religious reasons, or moral reasons, or ethical reasons, is pretty, I mean, I think impossible to do. But it got more and more difficult for people that wanted to make that case. And so if you think that there should be the right to same sex marriage, you can just make a case based on equality, respects, treating people fairly, the social implications of having people unhappy relationships, and not having to be in the closet, etc., right? There's just a range of arguments. On the right, what people wanted to retreat to, is to say, look, this isn't up to me, and it's not up to the courts, because the courts aren't allowed to do this, and I'm not okay with this legal strategy.
And I personally like gay people, I just, think that this is extra legal what you're trying to do. And so the theory provides you a way that you can use public reasons to make this case. Now, of course, there are people for which this was all sincere, right? In both arguments, right? Both I am in favor of gay people and I don't think the court should step in. But my guess is that the Venn diagram of where people sit, the overlap of that Venn diagram, of where you are in favor of the outcome, but not in favor of the method is the smallest of these concentric circles. Right? Like you and Steve Sachs they're alone or some think. [crosstalk 00:17:59] I don't know what you think on this to be clear, that's a-
Will Baude: No, I suspect, it's actually a big set, but it's like all weird elite people rather people in the real world.
Adam Chilton: Yeah, that's probably. Yeah.
Will Baude: Okay. So it been as, let me try this right, the idea is the reason for the asymmetry. The the story of the asymmetry is Democrats are trying to use the courts to achieve things that are popular. So they don't really need a theory, they can just say they like it. Whereas Republicans are doing things that are unpopular, so they need to cloak it in a theory?
Adam Chilton: To be clear about what I mean, by popular, I mean, popular among your elite social set.
Will Baude: Okay. So the Democrats are doing things that are popular among the elite social set, so they don't need to dress it up, whereas the Republicans are trying to talk themselves into doing things that are unpopular among the elite social set. And so they need a second order theory to make it acceptable.
Adam Chilton: Yep, that's my claim.
Will Baude: Okay. I kind of like it. Why is the elite social set though... I see some descriptive power to that. But as I'm thinking about, the fight for the next Supreme Court justice, which is not just taking place in the elite social set, right? There's an opportunity for the administration to gain or lose political points with the public at large. And the Justice once they're appointed, they won't care about anybody, right? Because they have life tenure. So why does either the forces that nominate justices or the justices themselves care what the University of Chicago Law faculty think about them?
Adam Chilton: Okay, so the justices themselves is not like remotely complicated, right? Because the justices themselves, go to dinner parties, and they go to events, from what I understand, go to the opera far too often. They show up to our law school and other elite law schools and come to dinner and lunch, etc. They read the news, and they listen to NPR or wherever it is that they get their content, and they want to be respectable people and they don't want to be seen as on the wrong side of history and moral monsters or whatever. And so they care about whatever the railing ones are. And there's good research suggesting that the Supreme Court is really pretty in line consistently with majority opinion in the United States, they really do. And this is not just any one justice. This is not just conservative justices. But the court really is tacking as political winds tack, even though they would never say the time has come because the poll has crossed 52% for same sex marriage.
But that is in practice what they do on case after case after case. So I think, the fact that they care about having respectable theories that they can defend, without having to appeal to religion, or conservative more values, or whatever else, I think is extremely appealing to them. Now, the nomination piece is slightly trickier. And I think there's a few things going on there. One is that, elite lawyers and lawyers, we're a pretty big group, and we're a pretty influential group. And so, lawyers are an extremely important donor class, we donate 10 times the rate of the general public, and we donate large amounts. We're involved in politics, we staff administration's etc. And so, even the Trump administration who was willing to like stick their eye in elite consensus, again, and again, was not really willing to stick their thumb in the eye of the elite, conservative legal movement, right?
And so judicial picks on staffing of the DOJ, and the White House Counsel's Office, they went with establishment people within those and then they knew that if US goes too far away from appointing people like Amy Coney Barrett, Kavanaugh, Gorsuch, the etc., you're going to get yelled at and lambasted on not only the New York Times, but also The Wall Street Journal, every respectable publication, etc. So they care about having lawyers to put on courts, law professors, rich lawyers, whatever willing to say like, yeah, that person's actually good.
Will Baude: So okay, so I get second part. Actually the first part, thinking about what we mean by sort of winning respectable and elite social circles. So like, Justice Thomas has been the originalist on the court for the longest period of time, but the idea is that, that's what's given him... I mean, my sense is that people do call him a moral monster at lots of law schools that, if you told our colleagues even that Justice Thomas was coming into giving a dad lecture and people started to grumble, he said, well, don't worry, he's an originalist, that makes him respectable. They would laugh at the idea that originalism added to his respectability.
Adam Chilton: Oh, it's all comparative. Imagine you had a justice, like Thomas or Amy Coney Barrett, that was like Justice Thomas or Amy Coney Barrett, deeply Catholic, and was like, I do this, because this is what the Bible says, get out of here, if they'd be allowed to give a speech about their opinions on gay marriage, or whatever the topic is, if they just went straight to talking about what their politics were.
Will Baude: Right. But what if they just did whatever Justice Breyer does? Say like, I do things for reasons. And then in this case, here are some reasons. And in every case, the reasons are a little different. And the reasons always conveniently line up with their political point of view. But the reasons are always like, I don't know, the things you'd expect anybody to say if they had reasons.
Adam Chilton: Oh, no, the whole underlying problem is the doublespeak problem, which is, so Breyer can both say what he wants to happen and say the court should do it. Right? I want there to be same sex couples have the right to marry and to the court should make that happen. What many conservative justice needs is the ability to double speak. I wish same sex couples can marry, however, the Constitution doesn't let you rule that way. Right? Because you need to be able to say the thing that's popular in elite circles, but then have an explanation for why you didn't actually do it.
Will Baude: I see. So the idea is that somebody like Justice Thomas, who says, look, I would vote to legalize marijuana at the state level, if I could, but I can't or something is going to be more acceptable in elite circles in a way that matters to the justices than somebody who says, look, I just think marijuana is a gateway drug to harder drugs and stuff like that?
Adam Chilton: Yeah, for sure.
Will Baude: And that's all worth all this work of adopting this theory?
Adam Chilton: I guess, I don't know what else you guys are up to. I mean, think of it this way, of the major constitutional issues that seem high stakes that matter in like my adult lifetime, originalists have been against the merge for merge equity and same sex rights. And that's, to me massively important, and just like full stop, if there's one team that said that they were against that at the court, which there is, I'm not for them. And that's enough of a threshold question, but you also throw in, for instance, I think that one policy that America has deeply wrong is gun control. We have too many guns and it results in school shootings, like in Newton and Parkland and so many others and too high of rates of suicide, etc. The Supreme Court has stood in the way of efforts to try to rein that in and what the originalist opinions like Heller and McDonald, etc., have made that more difficult, and I think that's one policy area where we're way off.
One thing where we've tried to go in the right direction is that America for a rich country has too expensive and too much limited access to health care, that should be one of our most important policy fights. And yet, with the ACA, whatever, even minor efforts, there have been haven't even gone far enough. The conservative judges have stood in the way of that, too. And so, I think there's so many issues within elite circles, it would just be really difficult on the merits to say you're not in favor of greater gun control, greater marriage, and same sex equity, different access to health care, and even voting rights too, we can do that one.
Will Baude: This is wild. So put aside same sex marriage for a second, and at least amongst it, originalist law professors, as far as I know, everybody who writes with the original media Second Amendment and thinks that it restrains gun control, also thinks gun control is bad policy. And they're not shy about saying so, like Eugene Volek or whoever else. And same thing on like the Affordable Care Act, if anything they're opposite, they're originalist and conservatives who said, well, I think the Affordable Care Act is terrible policy, and it should be repealed. But I'm not sure what the constitutional argument. I don't think there's a person in the country who publicly engaged in the doublespeak, you would expect of saying, well, the Affordable Care Act is good, but unfortunately, it's unconstitutional. I think there's literally zero people in the country who said both those things.
Adam Chilton: That's interesting. What about gun control? You don't think that... So, man, if it's not doublespeak that's going on, that's problematic. There's just a bunch of conservative law professors are like, yeah, bring on the guns. This is working well for us.
Will Baude: Yeah. I think so. I mean, I think they put a little differently. I think some of them say, sure, I support some gun control, but there are limits. And we talked to this before, but like, exactly which kinds of gun control are threatened litigation is complicated. But who would say yes, like at a minimum, you have a moral right to self defense. And so if you want to have a gun in your house, you should be able to do that. I think it's a bad idea. But there are people who think you're right to do that. And there certainly is, yeah, I guess the other version of critique is maybe if we lived in a different world, where we didn't already have hundreds of millions of guns circulating. And we had a responsive and professional police force that protected us when we were threatened, we shouldn't have gun control.
But in a world where we neither can rely on the government to protect us, nor have any realistic chance of getting rid of all the guns already in the hands of criminals, we probably shouldn't introduce, just make it harder for law abiding people to turn those off. And that is a common view. And I guess this is part of where I was wondering originally, it seems like elite circles have polarized somewhat, right? So there are elite, conservative circles and elite liberal circles in which different things are said. And at this point, it seems like if you're a conservative justice or something, you might not care about being acceptable among people like you, as long as you're acceptable among some combination of the federal side national banquet or CPAC, or whatever the conservative elite circles are you want to travel in.
Adam Chilton: Yeah. Okay. I think that that is probably true, that the elite circles are polarizing and separating. And we're having much greater sorting of elites and legal elites in that, it was possible as of the '70s, '80s to just misidentify people's politics in legal circles, right? And so this is Souter and Steven's and whoever, right? Maybe even to some extent, Kennedy and O'Connor or Byron White, whatever, we sort of got wrong based on a variety of factors what their views were and their politics were. I don't think that's very realistic right now that, that could happen, that you could just... I mean, I'm sure there's some people whose politics are ambiguous.
But if people that can make it to the height of the legal profession, that we wouldn't know and wouldn't be able to guess at a pretty high rate that has really changed. And in part, it's because our circles have split up and you've got to pick what event you show up at, right? And who you socialize with and whatever else. Now, for strategic reasons, I guess you could pick wrong for decades against type. But that's what you would have to do. Right? You can't just go to your Bar Association meeting and make it to the very highest stratosphere of the legal profession.
Will Baude: Yeah, we were in law school, the Bush administration nominated Harriet Miers to the Supreme Court with very little evidence about her.
Adam Chilton: Yeah, how'd that go?
Will Baude: Right. No, I have right. It's a good example in both directions. I mean, I think one thing that used to be different also is I'm not sure how much of it was mistake, and how much of it was a difference. Yeah, just deciding that the putting a New England Catholic on the Court, Justice Brennan was more important for the Republican party than, how you'll would vote on stuff, or putting a woman on the court, just for Ronald Reagan was more important than how conservative should be, how much of it was they just didn't care? And how much of it was that they didn't know or cared, but maybe it's some mix. But I guess, I'm wondering, so if this continues going forward, right? This could be a test as you'd expect, if there's now enough conservative elite circles, that if that's all it's important to conservative judges.
Presumably, we all could drop the pretense and stop talking about originalism now, because there's no need to appeal to anybody else. And we could just go back to openly talking about maximizing conservative policy views, if this is really about, unless some major subset of actually believes this stuff. Like all the conservative law professors would be horrified if a non-original structure got appointed for their own benighted reasons actually believe in originalism, which case we'll have to keep it up.
Adam Chilton: Yeah, well, it's interesting how this is going to play out and how this is go forward, in part in that you have I think, one area where the tension has really come forward has been the originalist politicians more than the originalist judges. Of course who comes to mind is Ted Cruz, Josh Hawley, Tom Cotton. I mean, all three of those guys were supreme court clerks now senators. But there's going to be other instances of conservative legal movement people that are state attorneys general, state solicitor generals, governors, senators, congress, people, etc. Right? And they are at this tension where they have to... Part of their credibility, part of what helped them fundraise, get endorsed, attention, everything else was their originalist credentials, and their elite legal credentials.
But then when they get into politics, they then have to say things that are what they believe to be popular with at least 50% of their base or 50% of the National Republican primary electorate or whatever it is that they're trying to maximize. And so you see, Holly and Cruz say stuff that's clearly inconsistent about what the constitution requires with any original understanding, and they do no better, right? When Josh Hawley says having his publishing contract canceled is an assault on the First Amendment and he's going to bring a lawsuit. It's laughable, that couldn't possibly actually think that the First Amendment required a publisher to publish his book after he said crazy things and whatever else we're going to accuse him up on, on January 6, you couldn't think that.
But that is helpful politics to him. And so I think the originalist brand is going to have a problem from its own popularity. It will be a popular brand for conservatives to say that they are originalists and not just legal scholars, not just the Ed Meese's of the world and the Antonin Scalia's, but the Josh Hawley's and whoever new members of Congress there are, and many of them will think things that are inconsistent with the original understanding of the Constitution, or at least indifferent to it at various points. And that's going to really, I think money with what originalism is, as an interpretive method of the Constitution, it was meant to resolve the legal status of various congressional executive action.
Will Baude: Okay, but isn't this solved through standard forms of brand protection? So that is what we need are people who are card carrying originalists to say, well, no, Josh Hawley is obviously not making a serious originalist argument. And so if they're not, well, whoever it is, is in charge of providing, saying, who's an originalist should just say, that's wrong, and ditto for whatever that will make these kinds of arguments.
Adam Chilton: Yeah, although this is a unique set of facts, right? In that, the people in charge of policing the originalists, many of them still want to be judges. So I don't know if they're going to be the right set of people to call out Cruz and Hawley too aggressively.
Will Baude: Yeah, yeah. Although, originalists have been known to make self career immolating moves in order to protect the brand of originalism?
Adam Chilton: Yeah, that is true. You guys love that.
Will Baude: Thinking here self servingly about the originalist against Trump movement four years ago, which probably cost several dozen of my friends court appeals judgeships, because-
Adam Chilton: Oh, yeah. I assume that the only conservative lawyers in the country that aren't currently judges are people that signed that letter?
Will Baude: There's definitely a correlation. So now, maybe there's a negative lesson from that. Maybe nobody will ever try to do that again, although I'm more optimistic. Okay. So I guess what I was thinking about also is on the flip side, I will talk about this a little bit, too is, we now are seeing the emergence of some conservative saying things like, well, originalism has kind of run its course. We got what we needed from it. But now it's time for us to abandon it, like Adrian Vermeule and people who follow him, which I take to be a kind of open version of this argument is like, now we can just openly talk about maximizing conservative values without the originalism, I think they will fail. But I think, if they succeed, there'll be strong evidence that your theory is right.
Adam Chilton: Yeah, I mean, Vermeule is the person that most prominently comes to mind doing this, that what he is up to is exactly this, right? Which is this sort of value neutral brand of originalism was useful as a way to start this project and get the conservative legal movement really going. But now, we don't need the value neutral part, we can just impose the values. That's it, I actually do really think that he's going to run into a problem in that, Adrian Vermeule is deeply Catholic and deeply religious, the set of like cultural, intellectual, and legal elites that are deeply religious in that way is just relatively small. And so I just think it's tough to get to a critical mass of the legal profession what you're pushing for is these values divorced from the methodology and the other things that originalism might bring to the table.
Will Baude: Yeah. I mean, the thing I wonder is, how much of this is hung up on the label in particular? In some of our previous discussions, it seemed like, we agreed that a lot of judges who are not self identified originalist or not Republicans are still doing something that's very different from the activism of the Warren Court. And something that could even be consistent with some theories originalism, they just call it judging or call it something very different. And so the other possibility is that what will happen is that the label has run into usefulness, maybe even outlived its usefulness and gets abandoned. But then everybody is like [inaudible 00:35:50] succeeded in bringing everybody on to more or less the same page. And the hard cases still be resolved by it. And so we'll still have lots of partisan fights for the hard cases. But we'll all be operating on a post originalist framework.
Adam Chilton: Yeah. So that I think for sure, right? Which is if you were to think of the height of the Warren Court period, where you had these legal scholars and legal academics and constitutional theorists, Rawls and Dworkin and John Hardy, etc., that are all like, hey, this is what the courts should do. And their theories about the correct way to interpret the Constitution to resolve legal questions, etc. did not start with the constitution as a starting point, but instead some first principles theory about what justice demands. I think we've moved away from that, right? There are fewer people that say like, oh, yeah, what the court should do is whatever promotes justice will stop.
Will Baude: Yeah, and more of the, of course, everybody agrees that history is a relevant starting point. And the question is how much have we changed since then? So both, here is a justice out, James Madison in and maybe the relative balance these things and the label of it disputed, but the terrain shifted.
Adam Chilton: Yeah, I think that's right. I mean, if nothing else, there's now six conservative members on the Supreme Court. And so the terrain is going to have shifted no matter what in that what's the point of making an argument that doesn't at least acknowledge these shifts that gets two three votes on the court, which I'm not even sure you get three anymore because Kagan isn't going to waste her vote on some complete theory that's totally inconsistent with originalism plus precedent or something like that, right?
Will Baude: Right. And I do wonder what... I mean, we'll see what the choice of the next president and the next nominee is. If you're a new Biden appointee, you can imagine deciding to brand yourself as what's wrong with the court is that this originalism stuff has taken over and I want to get rid of it again. Or you could imagine telling a story more like Justice Kagan, where you say, well, of course, I'm an originalist in the broad sense, but the majority is going way too far. And they're being too radical. This is to brand yourself as a non-radical, moderate originalist. I don't know that it's for a day and how the new justices will do that. But what they do may change the shape of the conversation, too.
Adam Chilton: Yeah, that's true. My guess is right now, if Biden were from picking from some set of elite law professors that are in the weeds of these debates, they would do the same thing as Kagan for the same reasons as Kagan. If Biden expands his search the way even various news outlets have reported recently, to people that might be spending less of their professional career in but engaged directly in these debates and more directly engaged in resolving disputes and trial courts across the country, I wouldn't be as certain what they would bother to say about that or what if they need to.
Will Baude: Yeah, I mean, it's interesting, some of the courts early, most branded originals like Hugo Black and Clarence Thomas, spent a lot of their practice time in less elite circles. I mean, Justice Thomas went to Yale, but they had more of a sense of being an outsider, and then that still either gravitated towards it. But now as originalism is more acceptable in elite circles, maybe that'll flip.
Adam Chilton: Yeah, it's interesting. Yeah. My guess is if you're a trial court judge in North Carolina, you just don't need to have some view on this. And then so, right.
Will Baude: But if you get elevated to the Supreme Court, like a year in, you might suddenly find yourself.
Adam Chilton: Oh, I'm sure once you're there, you'll get a view. The question is [inaudible 00:39:23] tell the Senate Judiciary Committee that you have one.
Will Baude: No, I think you just have to say that you call balls and strikes.
Adam Chilton: That's right.
Will Baude: So can I ask what... The other piece of this versus this political critique of originalism come up all the time. And one upshot I'm often a little unclear about is sort of, so what? So this is often made, I'll say as like a critique against academics who do originalism. So well, you do originalism, but originalism is just a Republican party front. And therefore what? If you work on a theory that has been leveraged by a political party for opportunistic purposes, does that make your theory bad? Do you have an obligation to abandon your theory? Do you have just more of an obligation to police the party to work within? How are you supposed think about it?
Adam Chilton: Yeah, well, this is an area where I sometimes think that the academics in the name that push hard, the concept of academic freedom, are being slightly naïve. So I think that academic freedom means you can work on whatever you want, and that you shouldn't be fired from your job if you choose to work on something unpopular. But it doesn't mean that there aren't things that you could choose to spend your time on, that are more or less useful, or more or less important. I don't think we're obligated to maximize the social use of the way that we spend our time. But it's worth thinking about what the consequences are.
And if you know what the consequences of what you're doing is just like credential washing, a political movement, you should ask yourself, do you support that political movement or at least does it bother me that this political movement will be advanced by this? If I found out that research that I was doing was helpful to people accomplishing social and political objectives I disagreed with, I'd stop and think about whether or not I should pick a different topic to work with.
Will Baude: Yeah. So you stop and you think, and then I don't know, what do you think to yourself? Well, I oppose this movement. I oppose what they're doing with it. On the other hand, if they're as bad as people say, they'll probably keep doing the same thing, even if they're not credential washed. So I'm contributing to it, but maybe not actually changing their outcomes. And I do hope that other people will use it for good. I don't know, where do you end up? Do you say I'll still just do something else or do you think, well, it's unfortunate, but-
Adam Chilton: I guess what your predictions on these probabilities shake out. I mean, one thing that's tough is that everything we do is on the margin, right? So it's easy to say that nothing I do actually matters or has any consequences because these political movements are so deep and broad, the idea that some article that I published that gets 25 citations could change anything in national politics feels just like, you'd have to be absurdly arrogant to think that in many cases. So I don't know how much it matters, but if you think that's the net impact of what you're up to.
Will Baude: Yeah, yeah. Okay. I mean, obviously also, the margins are also slower in sense of you can't just stop and just like totally different if you've spent a lot of time mastering something. But maybe they affect more junior scholars thinking about what to go into. I mean, as is something I think about, and I've been inclined to resist this frame, I've been inclined to think that, as academics, I'm not convinced we are, I mean, I agree with you that we do have to make choices of what to work on. And we're responsible for those choices, even though the dean can't countermand them. But I'm more skeptical of the view that we should think that much about what the short term consequences will be.
Because it's just a part of the reason particularly bothered, like how university professors do research is some belief that we want more investment in long term ideas whose exact importance and relevance is unclear. So I wonder if we should more try to put that stuff aside one way or the other. And just think about, what do I think will be a long term contribution to knowledge? And like, the next 10 years, it's just all noise.
Adam Chilton: Yeah. So on that, let me say, if what you're doing is just like theoretical physics, or abstract math, or biology or something, sure, just answer questions, prove points of knowledge. But I find it's the people that actually do the most overtly political stuff that then appeal to these academics freedoms to defend themselves. And so that's why it's problematic. It's like, I'm just producing knowledge. I just happen to want to write about race and social regulation and all of these other things in order to do it. And so I guess, in these cases, you were doing, not you, but people that do this are often doing things that are explicitly political and explicitly short term, and then want to disavow the fact that there's political consequences to it.
Will Baude: Yeah, I don't know. Okay, maybe, maybe. Maybe we were traveling different circles. I think there's a genre of lock press or article that I think we both hold in contempt. That's sort of here is a pending Supreme Court case, here is my theory of everything that will tell the Supreme Court what to do in this case, or if not quite a pending, is a case that I predict the court will decide in the next two to three years. I think I agree with you that's not a great sort of place to invest their resources and a lot of people do. But it seems like when you decide you care about even something like race and social regulation or gun control, it's not because of the gun control picture the next 10 years, right? It's like, big ideas about how the United States deals with these topics.
Adam Chilton: Oh, yeah, I guess this all depends on, right? But if you write a paper on how a Supreme Court case should be resolved. And then that paper in some way helps influence the way that people think about that case. Obviously, that was your goal. And you had a legal and political goal in mind in writing that paper, if it's only at a slightly higher level of abstraction, though, and it's not this one particular case, but you are writing in opposition to wave the way you think the Supreme Court is currently behaving. So many people, they have a goal, they want to move the way the supreme court thinks about things. And the way that they decide cases. And if they are influencing that move, then that's...
Will Baude: Well, that's the version I'm working currently. So I write about originalism. I tell people they should be originalist right now, only Republicans are originalists. And that's not a state of affairs I like. I would like if everybody were originalists. So what am I supposed to do? I mean, I'd like to say, wait long enough, maybe everybody will become originalists, abandon the label, but they'll still become originalists. But I don't know if that's true. And I don't love the short term situation.
Adam Chilton: Yeah, I don't know. It's tricky. I'm not sure what the answer on that is, if there's a way to pull that off.
Will Baude: Okay. Well, the answer is not... I obviously have to stop doing this because the short term consequences that will dominate that at least I don't feel so bad that I'm obviously doing the wrong thing. But this is the part where I get puzzled about what am I supposed to think about, like the theory of evolution was leveraged for a long time by racists and neogenesis do all sorts of like bad social policy that was bad, even though theory of evolution was useful. And I get that's different, because it's more like theoretical physics than the law professors do. But it confuses me when we're supposed to worry about that.
Adam Chilton: Yeah, I mean, it's worth asking, if you wish that there would be more non-conservative Republicans that were convinced about originalism and who are originalists and willing to define themselves that way in settings other than Senate confirmation hearings, maybe the question is, why is it that so many of us are so hostile to this view and this approach, right? And if there's something to that.
Will Baude: Yeah. Or if there's some way to figure out how to reach people despite that, hence this conversation.
Adam Chilton: Yeah. I just got a question. So let's get a question. Are there particular examples of bad faith invocations of originalism by overtly conservative politicians? Said another way, are there originalist takes that politicians have used, which true originalist scholars would disavow? Well, here's an easy one that comes to my mind right away is, remember that last Hail Mary brief to try to overturn the election that the Texas Attorney General filed and then which was to challenge the election rights results in Pennsylvania?
Will Baude: Yeah.
Adam Chilton: That was a brief that Cruz, and all of those guys were in favor of, and they pretended like, oh, some of these other challenges were the dumb ones. But this is the good challenge, that we're all signing off. And 100 members of the House of Representatives signed on it, and it was laughably bad, and just an embarrassment that so many people claiming to be serious thinkers would.... Not all 100 members of the House of Representatives claimed to be serious thinkers, but there's some people in there that real legal knowledge and experience, it's signed off on that.
Will Baude: I confess, I must have read the brief, but I have no memory of it anymore. Did the brief actually have originalist arguments? Or it just have like an originalism brand because a bunch of conservative lawyers have joined it?
Adam Chilton: Oh, I think the latter.
Will Baude: Okay. I mean, it's funny because it is this one quasi-originalist argument floating around these cases about whether sort of the Bush versus Gore argument whether the state court can change rules, maybe the state legislature ended up not mattering. So there have not been such as much litigation. So you could imagine that one maybe being an example, although I think it's a plausible, a somewhat strange argument. It's harder to think of ones that are really, I don't know, that people are really making in seriousness like Senator Josh Hawley did not actually try to make an originalist argument against the state action doctrine. He just didn't bother to make an argument at all. Right?
Adam Chilton: Right. Yeah, sure. Exactly.
Will Baude: And I mean, this is part of why I'm more worried about is the difference in the Republican party between the people who believe in the need to make arguments and the people who don't, I'm less worried about the people who make arguments that are I think, wrong. I mean, I'd rather make right arguments than wrong arguments, but I mostly care a lot about that even disciplining the need to make arguments, than hopefully, that'll let us get things consider, right?
Adam Chilton: Yeah, I'll say, I mean, I don't know how to put this. But I find, Hawley and Cruz and Cotton, some of the most absolutely, I mean, frustrating, despicable, problematic politicians, because I think they're stupid on purpose. I actually think that those guys know what they're doing, and have just decided that making arguments being reasonable in many settings is not useful to them. And it is problematic that the people that went to school, clerked, started their early legal careers as these people being like, I'm just constrained by methods. And I believe in a particular view of the world, were just super fast to abandon it for the specter of power. Now, I'm not sure there's anything particular about originalism or anything else.
But I think what it does help to show you is between the combination of FedSoc and originalism that we have a conveyor about the power of which originalism is associated with, for young conservative, ambitious lawyers. And as a result, the idea that you can disentangle the relationship between the brand, the theory, and the conservative politics, I think is unlikely.
Will Baude: Yeah, I guess, it's funny, I had the opposite reaction to your story. I was like, everything went wrong when they decided they didn't care about originalism anymore.
Adam Chilton: No, if you show up at law school, and you want to be a senator, and you're conservative, you sign up for FedSoc and you say you're an originalist. And all of a sudden you're going to get a job 10 years earlier than you would otherwise. It's been extremely effective. It's a strategy to get people's career ahead.
Will Baude: I just meant it will get to public life if we see the people who are behaving the worst are the ones who've broken free of whatever principles originalism would have posed. The solution is more originalism, not less.
Adam Chilton: All right, I like that. I think. I'm sure people have already done the, where Cruz and Hawley went wrong is abandoning originalism, but if not, I feel like that's a powerful yet positive signals from elites thing to position and stake out.
Will Baude: Have you there. All right, that was a great question. I think we are closing up at the end of time. So let's wrap it here.
Adam Chilton: Thanks, everyone.
Will Baude: Thank you, everyone. Thanks for listening. And don't forget to share and subscribe and review wherever you get your podcasts. Make sure to also check out the other Dissenting Opinions episodes where I talk with top legal minds about a Supreme Court case they believe is misunderstood. Finally, if you're looking for more current SCOTUS talk, check out Divided Argument, an unscheduled and unpredictable Supreme Court podcast hosted by me and Dan Epps.