There Is Nothing Pragmatic About Originalism

By David S. Law[*] and David McGowan[**]

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[Editor's Note:  We are proud to present Parts III and IV of this Colloquy Essay.  Parts I and II were published here last week, and you can view the piece as a whole here.  Previous pieces in this series, by Professors John McGinnis, Michael Rappaport, and Ethan Leib, can be found here.]

III.  Tipping the Scales:  The Relative Costs and Benefits of Originalism and Pragmatism

In this Part, we identify four flaws in McGinnis and Rappaport’s cost-benefit analysis, all of which serve to disguise the actual costs of originalism and to inflate its benefits relative to other approaches.  First, supermajority approval of amendments is very costly, to the point that beneficial amendments may never be adopted.  Second, originalism is subject to significant error costs.  Third, a court may pick better policies than a supermajority.  Fourth, the costs of originalism accumulate during the inevitable delay that attends our supermajoritarian process of constitutional amendment.

A.  The High Cost of Supermajority Action

McGinnis and Rappaport are dismissive of both the costs entailed by flaws in the original Constitution, and the costs involved in any effort to correct them via formal amendment.[30]  In their reply to Professor Leib, for example, they assert that any defects in the original Constitution “are not likely to be all that costly—or else they would be eliminated.”[31]  That assertion is neither responsive nor correct.  First, small costs are still costs, which any pragmatist or utilitarian would avoid if possible.  Second, even the costliest of defects can endure indefinitely if the costs of correcting the defect are sufficiently high.

Securing the nationwide supermajoritarian action needed to adopt a constitutional amendment is notoriously difficult and costly.  Attention must be drawn to the topic, people must be educated, and collective action problems must be overcome.[32]  Even for seemingly uncontroversial issues, these can be formidable tasks, as the history of the most recent amendment to the U.S. Constitution aptly illustrates.  It is difficult to find anyone who objects to the idea that members of Congress should have to wait an election cycle before reaping the benefit of a pay raise that they have awarded themselves.[33]  Yet it took over two hundred years to ratify this simple rule in the form of the Twenty-Seventh Amendment.[34]

Other welfare-enhancing, supermajority-favored constitutional changes are likely to prove even more difficult to enact via the amendment process.  Many of the silliest restrictions on personal freedom, such as prohibitions on contraception, criminal laws against sodomy, or even bans on interracial marriage, may exist in only a few states.  Citizens in other states might understand that such laws are harmful, yet also rationally question why they should spend their scarce time and energy voting on constitutional amendments to permit conduct that their states do not ban in the first place.  That such restrictions exist in relative isolation implies that they inflict costs on relatively few people and thus might never attract sufficiently widespread action to bring about a constitutional amendment to overturn them. 

B.  The Error Costs of Originalism

McGinnis and Rappaport argue that judges cannot be trusted to engage in pragmatism because “the judges’ own preferences would substantially interfere with the accuracy of their perceptions of social change.”[35]  Yet the argument cuts both ways.  “The judges’ own preferences” can also “interfere with the accuracy of their perceptions” of original meaning.[36]

Nor is bias the only obstacle to originalism done right.  As historians have often complained, there is nothing inherently reliable about “law office history” performed by judges (or, more accurately, their law clerks) in the shadow of a particular case.[37]  Meanwhile, ever-increasing scholarly disagreement over what “originalism” is, and how it ought to be done, raises the question whether it is even possible to identify the costs and benefits of the approach.[38]

Originalist-minded judges will make mistakes about history.  And when they do, the supposed pragmatic benefits of originalism are lost, on McGinnis and Rappaport’s own account.  Indeed, if the error rate is high enough—and much commentary by historians suggests it is very high—there would be no pragmatic reason at all to choose originalism.  How often the Court will actually get it wrong, we cannot say.  But neither can McGinnis and Rappaport, who do not even acknowledge the problem.

C.  The Opportunity Costs of Originalism

McGinnis and Rappaport assert that supermajoritarian measures have distinctive beneficial properties such as helping people transcend ethnicity and geography.[39]  The logic behind this assertion is not clear, but their premise appears to be that, in order to obtain supermajority assent, a measure must be acceptable to enough people that it embodies a truly national norm that is not very divisive.[40]  They argue that non-originalist judicial decisions lack these salutary qualities both because judges might settle on some norm other than the one that a supermajority would endorse, and because judicial intervention preempts the operation of the amendment process.[41]

It is true that judges may fail to adopt a more welfare-enhancing norm that would otherwise have been embodied in a constitutional amendment.  The reverse, however, is also true:  pragmatic judges may adopt a more welfare-enhancing norm than the amendment process would select.  Suppose the norm “separate educational facilities are inherently unequal” is better than “separate facilities can be equal if we just try harder.”  Does anyone seriously think that a national supermajority in 1954 would have chosen the better of the two norms? Supermajorities and judges may choose differently, but McGinnis and Rappaport offer little reason to think that supermajorities will choose better than judges.[42]

In fact, there may be little or no room for supermajorities to choose better rules.  What, exactly, were the alternatives to the rules adopted in Griswold v. Connecticut,[43] Eisenstadt v. Baird,[44] Loving v. Virginia,[45] or Lawrence v. Texas?[46]  Such cases pose essentially binary policy choices.  Married and single couples either may or may not use contraceptives; people of different races either may or may not marry; people of the same gender either may or may not have consensual sex.  If there is only one choice that improves on the status quo, and judges are routinely in a position to make that choice more quickly and cheaply than the amendment process, what sort of pragmatism refuses to let them make that choice?

D.  The Cumulative Costs of Originalism

McGinnis and Rappaport take the position that judges should refuse to alleviate suffering that they could alleviate.  Only if judges do so, they argue, will society take notice of that suffering and choose whether to end it via the amendment process.

In the meantime, however, the costs of a bad rule will continue to accumulate over time.  Where a rule generates costs that can be ameliorated or avoided, it is ordinarily better to fix the rule sooner rather than later, for the same basic reason that a dollar today is worth more than a dollar tomorrow: happiness deferred is happiness lost in the interim.

It is nevertheless worth the wait for an amendment, argue McGinnis and Rappaport, because the eventual benefits of supermajority decisionmaking will exceed the immediate payoff of judicial problem-solving.  But there is not much reason to think that our patience and endurance will be rewarded in the end.  It is uncertain that an ameliorating amendment will ever be adopted, thanks in part to the high cost of supermajority action.[47]  It is even less certain that such an amendment would adopt a better policy than a pragmatic court would have chosen.  In fact, as we have seen, there is plenty of reason to expect the opposite.[48]  Still less certain is the adoption of a rule so much better that it compensates for all the suffering we have endured in the meantime.

At most, their reasoning suggests that, in some cases, it might be utility-maximizing for judges to ignore evidence, to refrain from utility analysis, and to follow a blanket rule of originalism.  In other words, they have argued for a form of rule utilitarianism, even if they do not call it that.  But in what cases, and using what rule?  Even if it is a good idea for judges to obey blanket rules of constitutional adjudication, there are alternatives to originalism that might perform better—say, a rule of obedience to public opinion polls that reveal a supermajority preference, or of conformity to a supermajority view among courts worldwide.[49]

Alternatively, it might be best to ditch rules altogether and opt for act utilitarianism, which in this context we might call case utilitarianism, or simply judicial pragmatism—namely, the case-by-case maximization of utility by judges on the basis of cost-benefit analysis.  After all, cost-benefit analysis makes sense in a lot of situations, including judicial decisionmaking.[50]  From a pragmatic perspective, it is not clear why constitutional cases should be any different.

IV.  A Pragmatic Defense of Pragmatism

McGinnis and Rappaport’s argument about the relative superiority of originalism boils down to their assertion that the Supreme Court is bad at deciding constitutional cases in a pragmatic, utility-maximizing way.[51]  The basis for their claim that the Court is bad at pragmatic utility-maximization is that (1) there are not many justices—far fewer than the nose-count needed for a constitutional amendment; (2) the Court decides things by majority vote, not supermajority vote; and (3) the justices are “elite lawyers” who “work in Washington.”[52]

It is hard to see what these observations prove about the Court’s aptitude for pragmatism. There are thousands of elite lawyers who work in Washington and make countless policy decisions.  They do so, moreover, in small groups, or even individually, on a far-from-supermajoritarian basis.  Some are agency officials and legislative aides; others are members of Congress and Cabinet secretaries.  Very few wear black robes.  Do McGinnis and Rappaport mean to suggest that they are all bad at policymaking?

Whether the Court is bad at maximizing utility on a case-by-case basis—and whether it would do a better job by sticking with originalism—depends instead upon a number of empirical questions that McGinnis and Rappaport do not even acknowledge.  They never refer, for example, to the actual costs and benefits of pragmatic judicial decisions, or even to some proxy for those costs and benefits, such as public reaction.  They never stop to ask whether judges are sophisticated or naive policymakers, or whether the judges’ preferences actually lead them to make bad decisions.  In fact, they offer no account of how non-originalist justices decide cases.  Are the justices indifferent to costs and benefits?  Are they better or worse than a popular supermajority at ascertaining the consequences of their actions?  Do their preferences coincide with those of the median voter?[53]  If not, do they attempt to keep the median voter happy anyway?

Admittedly, there is no way to perform an actual head-to-head utility comparison of originalism and non-originalism.  It is impossible to hook up the American population to utility-meters and measure the difference in overall utility between a hypothetical world in which the Court adjusts constitutional doctrine continuously as it deems best, and a hypothetical world in which the Court adheres to originalism.

Judged against what we do know, however, McGinnis and Rappaport’s wholesale indictment of judicial policymaking is wholly unwarranted.  We know something about how actual non-originalist decisions have been received in the real world, and this information is obviously relevant to any choice between originalism and non-originalism on pragmatic grounds.  If non-originalism tends to produce outcomes that people like, that fact alone is good reason to choose non-originalism on pragmatic grounds, and we should choose originalism only if it would yield even better outcomes that people would like even more.

Let us consider, therefore, how people actually feel about non-originalism.  We can safely say, for starters, that the general public does not fetishize originalism for its own sake.  Quite frankly, the general public would probably be hard-pressed to distinguish originalism from a hole in the ground.  This is the same general public, after all, that thinks Clarence Thomas is the most liberal member of the Court.[54]  To be sure, members of the public can be highly attentive to the Court’s work when their immediate interests are directly at stake[55]:  it should come as no surprise, for example, that Orthodox Jews in the New York area were aware of the Supreme Court’s decision in Kiryas Joel.[56]  To the extent that people know enough about a Supreme Court decision to be unhappy about it, however, it is safe to assume that their objection will be to the substantive policy result, not to the Court’s choice of a non-originalist approach per se.

We also know that many of the Court’s most obviously creative decisions have been warmly embraced over time, to the point that they are now considered beyond question.  The doctrines announced in Brown v. Board of Education,[57] Griswold v. Connecticut,[58] Eisenstadt v. Baird,[59] and Loving v. Virginia[60] are as much a part of the American ethos as the document in which they cannot be found.[61]  The Constitution that forbids racial apartheid in public schools and protects the right of unmarried couples to use contraception is the Constitution that Americans know and love, regardless of what anyone may have written or intended in 1789 or even 1868.

In fact, if public opinion is any indication of whether the Court is reaching desirable outcomes, there is much reason to think that a non-originalist Court gets things right—more so, indeed, than our elected officials do.  We know that the public is generally satisfied with the Court’s performance, non-originalist warts and all.  Study after study has found that the American people have greater, and more consistent, faith in the Court than in other institutions of government.[62]  Not even Roe v. Wade[63] appears to have disturbed the public’s overall approval of the Court.  In fact, Roe marked the middle of a period of sharply increasing public confidence in the Court.[64]

Finally, we know that the Court’s decisions are, whether by coincidence or design, remarkably consistent with public opinion.[65]  Empirical studies have found repeatedly that the Court’s constitutional decisions have been largely in sync with public opinion.[66]  Indeed, it appears that the Court’s actions are more often in sync with the general public than those of the elected branches.[67]  The constitutional jurisprudence of the Warren and Burger Courts—surely a low point for originalism—was no exception to this general trend.[68]

If public satisfaction with the Court is any measure of whether the Court is any good at making constitutional law in a pragmatic, non-originalist, welfare-enhancing way, the answer seems fairly clear:  yes, it is.  McGinnis and Rappaport might demur that people could be even better off if the Court stopped trying to anticipate their wishes and instead let them work up the energy to pursue the amendment route.  This is true.  One cannot disprove a proposition about the path not taken.  Our response is simple:  yes, people might be better off under originalism.  But the evidence suggests this is doubtful, because judicial pragmatism is hard to beat.  The pragmatic thing to do, it turns out, is to stick with pragmatism.

Conclusion

Professors McGinnis and Rappaport are brilliant and thoughtful scholars.  It is to their credit that they have even attempted the task of reconciling originalism and pragmatism, which have long been mortal enemies.  They have tackled a difficult—we suspect impossible—challenge with creativity and originality.  Even in the world of constitutional theory, however, speculation can only go so far.

There is nothing pragmatic about either originalism or their defense of it.  Pragmatism is about paying attention to consequences, which in turn demands observation and measurement.  Yet observation and measurement are precisely the things that McGinnis and Rappaport want our judges to avoid, and which, tellingly, they themselves avoid when it comes to how our judges have actually performed.  When it comes to pragmatism, theory and conjecture are no substitute for empiricism.

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*.  Associate Professor of Law, University of San Diego; Assistant Adjunct Professor of Political Science, University of California, San Diego.

**.  Professor of Law, University of San Diego.  We are grateful to Dan Farber, Susan Franck, Ethan Leib, Robert Post, Mike Ramsey, Larry Solum, and David Zaring for their extremely valuable comments and suggestions.

30.  It may be more accurate to say that they are inconsistent.  At one point they say “entrenched norms cannot be easily eliminated.”  McGinnis & Rappaport, supra note 1, at 71.

31.  McGinnis & Rappaport, supra note 27, at 24.

32.  See, e.g., Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 1–65 (rev. ed. 1971) (explaining the inherent difficulties of collective action); Jack L. Walker, Mobilizing Interest Groups in America:  Patrons, Professions, and Social Movements 41–55 (1991) (discussing the role of institutions and policy entrepreneurs in overcoming collective action problems and mobilizing large groups of people on questions of policy).

33.  See U.S. Const. amend. XXVII (“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”).

34.  See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 498 (1992).  Nor is the Twenty-Seventh Amendment the only example of how difficult it can be to secure constitutional change that enjoys supermajority support.  Consider also Franklin Roosevelt’s New Deal:  in the 1936 election, Roosevelt won over 60% of the vote, carried every state except Maine and Vermont, and secured a whopping three-quarters Democratic majority in Congress.  See David E. Kyvig, The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment, 104 Pol. Sci. Q. 463, 465 (1989).  Yet even Roosevelt, a master politician with a massive electoral and legislative majority at his disposal, despaired at the difficulty of having to secure a constitutional amendment in order to overcome the Court’s resistance to the New Deal—so much so that he chose instead to embark upon his now-infamous campaign to pack the Court.  See id. at 464–68 (noting FDR’s perception of the constitutional amendment process as “impossibly difficult,” notwithstanding his firsthand experience with earlier, successful amendment efforts).  The eventual and effective remedy for constitutional doctrine that had fallen badly out of sync with pressing needs and circumstances was a change of course on the part of the Court itself—the so-called “switch in time that saved nine.”  See, e.g., Michael Comiskey, Can A President Pack—or Draft—the Supreme Court? FDR and the Court in the Great Depression and World War II, 57 Alb. L. Rev. 1043, 1046–47 (1994).

35.  McGinnis & Rappaport, supra note 27, at 23.

36.  Id.; see, e.g., Leonard W. Levy, Original Intent and the Framers’ Constitution 299–300 (1988) (deeming it a “notorious fact” that the Justices have routinely “abus[ed] historical evidence in a way that reflects adversely on their intellectual rectitude as well as on their historical competence”); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 155 (surveying the Court’s long tradition of twisting history to its own purposes, and assessing the results as “very poor indeed,” from a “professional point of view”).

37.  E.g., Levy, supra note 36, at 299–300, 313–21, 388–89 (bemoaning the quality of “law office history,” and observing that “examples of the historical illiteracy of the Supreme Court can be multiplied ad nauseum”); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 11 (1996) (remarking upon the poor quality of “law office history”); Kelly, supra note 36, at 132 (same).

38.  To pick one exchange involving McGinnis and Rappaport, see Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. (forthcoming 2007); John O. McGinnis & Michael B. Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. (forthcoming 2007); and Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 Const. Comment. (forthcoming 2007).

39.  McGinnis & Rappaport, supra note 1, at 71–72.  We find this assertion surprisingly ahistorical.  For one thing, it begs the question of when, exactly, America has ever transcended its ethnic or geographic differences, with or without the help of supermajority rules.  For another, history demonstrates that supermajority requirements can easily perpetuate ethnic and geographic divisions.  To take one example, the Senate’s supermajoritarian filibuster rules thwarted welfare-enhancing measures such as anti-lynching laws and thereby helped prolong Southern apartheid for decades.  See, e.g., Robert A. Caro, Master of the Senate: The Years of Lyndon Johnson 93, 218 (2002).

40.  McGinnis & Rappaport, supra note 1, at 71–72.

41.  See id. at 78.

42.  What little reason they do give is discussed below in Part IV.

43.  381 U.S. 479 (1965) (link) (holding that a state law prohibiting the dispensing of contraceptives to married people violated a constitutionally protected “zone of privacy”).

44.  405 U.S. 438 (1972) (link) (extending the rule of Griswold v. Connecticut to unmarried couples on equal protection grounds).

45.  388 U.S. 1 (1967) (link) (striking down a state law against interracial marriage on equal protection grounds).

46.  539 U.S. 558 (2003) (link) (invalidating a state law against same-sex sodomy on substantive due process grounds).

47.  See supra Part III.A.

48.  See supra Parts II & III.C.

49.  Other possibilities include rules that do not displace, but instead reduce the burden of, full-blown judicial cost-benefit analysis.  For example:  only issue decisions you expect to be enforced; never order taxes raised; keep your hands off foreign relations.  The choice is not between originalism and impossible calculation.  The choice is between originalism and pragmatic analysis informed by a long institutional history and, typically, the experience evinced by the record of a concrete case.  It might indeed be hard to specify, for example, the utility-maximizing rule of sexual behavior in general, but it is not nearly as hard to decide the much narrower question whether a ban on prosecution of consensual same-sex acts increases net social welfare.

50.  Suppose, for example, that an originalist cannot decide on the historical record whether the First Amendment condemns prosecutions for seditious libel.  Presumably McGinnis and Rappaport would want a judge to do his best to work through the consequences of a decision allowing or forbidding such prosecutions.  Judges do not magically lose this ability when the historical record is clearer.

51.  See, e.g., McGinnis & Rappaport, supra note 27, at 23 (arguing that the judiciary is unlikely to “capture true social change” because “the judges’ own preferences would substantially interfere with the accuracy of their perceptions of social change”).

52.  McGinnis & Rappaport, supra note 1, at 75.

53.  See, e.g., Neal Devins, The D’Oh! of Popular Constitutionalism, 105 Mich. L. Rev. 1333, 1347–50 (2007) (link) (arguing that the appointments and confirmation process has produced “a Court whose preferences generally track the median voter”); infra notes 65–68 and accompanying text (arguing that, contrary to the premises of most contemporary constitutional theory, the Court is largely a majoritarian institution).

54.  When asked to name the most liberal member of the Court, respondents in a 2006 survey picked Justice Thomas twice as often as Justice Stevens and three times as often as Justice Breyer.  See Kevin T. McGuire, The Judicial Branch: Judging America’s Judges, in A Republic Divided 194, 198 fig.1 (Annenberg Democracy Project ed., 2007); see also, e.g., Devins, supra note 53, at 1340–41 (mustering a spate of statistics to illustrate that Americans know “[n]ext-to-nothing” about the Constitution).

55.  See Gregory A. Caldeira & Kevin T. McGuire, What Americans Know About the Courts and Why It Matters, in The Judicial Branch 262, 266 (Kermit L. Hall & Kevin T. McGuire eds., 2005).

56.  Board of Educ. of Kiryas Joel Sch. Dist. v. Grumet, 512 U.S. 687 (1994); see Valerie J. Hoekstra, The Supreme Court and Local Public Opinion, 94 Am. Pol. Sci. Rev. 89, 91–93 (2000) (discussing awareness of the case within New York’s Hasidic Jewish community).

57.  347 U.S. 483 (1954).  We are of course aware of originalist efforts to bring Brown into the fold. See, e.g., Michael W. McConnell, Originalism and the Segregation Decisions, 81 Va. L. Rev. 947, 952–53 (1995).  Nevertheless, the view of Brown as contrary to nineteenth-century understanding is the standard, and best-supported, originalist view.  See William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements On Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2365 (2002) (“Virtually no one has been persuaded by McConnell’s learned account.”).  It was, in any event, the view held by the justices who decided Brown that they were departing from the original understanding of the Fourteenth Amendment.  See Michael J. Klarman, From Jim Crow to Civil Rights 302–08 (2004).

58.  381 U.S. 479 (1965) (holding that a state law prohibiting the dispensing of contraceptives to married people violated a constitutionally protected “zone of privacy”).

59.  405 U.S. 438 (1972) (extending the rule of Griswold v. Connecticut to unmarried couples on equal protection grounds).

60.  388 U.S. 1 (1967) (striking down a state law against interracial marriage on equal protection grounds).

61.  The fact that “the Constitution” transcends the words set to paper centuries ago has long been evident to acute observers and has only grown more obvious over time.  See, e.g., Karl N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1 passim (1934) (distinguishing “the Document” from “the Constitution”).

62.  See, e.g., Caldeira & McGuire, supra note 55, at 264 (“[O]ver and over again, polls show that Americans have more confidence in the Court than either the president or the Congress.”); McGuire, supra note 54, at 206 (reporting the results of a 2006 Gallup poll revealing public esteem for the Court to be “at its highest level in several years, well above that of the Congress and the president”); Jeffery J. Mondak & Shannon Ishiyama Smithey, The Dynamics of Public Support for the Supreme Court, 59 J. Pol. 1114, 1116 (1997) (observing that “aggregate support for the Supreme Court consistently exceeds levels for Congress and the executive branch”).

63.  410 U.S. 113 (1973) (link).

64.  See Gregory A. Caldeira, Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court, 80 Am. Pol. Sci. Rev. 1209, 1213 & fig.1 (1986).

65.  See, e.g., Barry Friedman, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596, 2606 (2003) (“[T]he wealth of existing evidence suggests that most of the time judicial decisions fall within the range of acceptability that one might expect of the agents of popular government.”); id. at 2607 (“[I]n the main the results of Supreme Court decisionmaking comport with the preferences of a majority or at least a strong plurality, something that many political scientists now take as a given.”); Jeffrey J. Mondak & Shannon Ishiyama Smithey, The Dynamics of Public Support for the Supreme Court, 59 J. Politics 1114, 1120 (1997); William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am. Pol. Sci. Rev. 87, 91–95 (1996) (reporting a significant correlation between public opinion and the outcome of Supreme Court decisionmaking, subject to a five-year lag); William Mishler & Reginald S. Sheehan, Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective, 58 J. Pol. 169, 186–96 (1996) (finding a significant correlation between public opinion and the voting behavior of approximately half of all justices over the preceding forty years).

66.  See, e.g., Thomas R. Marshall, Public Opinion, Representation, and the Modern Supreme Court, 16 Am. Pol. Q. 296, 297–98 (1988) (same); Thomas R. Marshall & Joseph Ignagni, Supreme Court and Public Support for Rights Claims, 78 Judicature 146, 148–49 (1994) (reporting that the Court is much more likely to rule in favor of constitutional claims that enjoy public support, than constitutional claims that do not); Alan D. Monroe, Public Opinion and Public Policy, 1980–1993, 62 Pub. Opinion Q. 6, 12–13 & 13 tbl.1 (1998) (reporting that overall federal policy is consistent with majority preference only about 55% of the time); Terri Peretti, An Empirical Analysis of Alexander Bickel’s The Least Dangerous Branch, in The Judiciary and American Democracy: Alexander Bickel, The Countermajoritarian Difficulty, and Contemporary Constitutional Theory 123, 140 (Kenneth D. Ward & Cecilia R. Castillo eds., 2005) (observing that “the Court’s decisions match majority opinion more often than not and about as often as the other branches”).

67.  Compare Thomas R. Marshall, Public Opinion and the Supreme Court 78–81 (1989) (reporting that the Court’s decisions on constitutional issues are in sync with public opinion approximately 60% of the time) with Alan D. Monroe, Public Opinion and Public Policy, 1980–1993, 62 Pub. Opinion Q. 6, 12–13 & 13 tbl.1 (1998) (reporting that overall federal policy is consistent with majority preference only about 55% of the time).

68.  See Marshall & Ignagni, supra note 66, at 148–49 (finding that, from 1953 through 1992—a period that spans the entirety of both the Warren and Burger Courts—the Court ruled in favor of civil rights claims 73% of the time when supported by public opinion, but only 40% of the time when not supported by public opinion).

To be sure, the public does not endorse everything that the Court does.  There is significant evidence, for example, that invalidation of federal statutes erodes public support for the Court, at least in the short term.  See Caldeira, supra note 64, at 1219 tbl.1, 1222–23.  Yet this finding does not imply that the Court would make people happier by adhering to originalism:  as it has repeatedly demonstrated, the Court is perfectly capable of striking down federal statutes in the name of originalism.  See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (striking down the federal Gun-Free School Zones Act on the grounds that it exceeds an originalist understanding of Congress’s powers under the Commerce Clause); United States v. Morrison, 529 U.S. 598 (2000) (striking down the federal Violence Against Women Act of 1994 for similar reasons).

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Copyright 2007 Northwestern University      

Cite as: 102 Nw. U. L. Rev. Colloquy 86 (2007).

Persistent URL: http://www.law.northwestern.edu/lawreview/Colloquy/2007/27

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