The elephant in the originalism room

By all accounts, Neil Gorsuch is well qualified to serve on the U.S. Supreme Court. His confirmation has relieved us from enduring any more of the overwrought baying from both his supporters and his detractors.

The left whined over Gorsuch's nomination as a looming disaster. The right couldn't stop congratulating itself on what a marvelous jurist he is. Some on both sides had these two things in common: sanctimony enough to make you puke after listening for more than five minutes, phoniness enough to gag a late-night TV evangelist working up a good cry for the cameras while shilling for cash.

Is there any piety more earnest than that of the partisan who can't stand it that the newest Supreme Court justice will probably decide cases in a way disagreeable to the partisan? Years ago, I watched as Sen. Ted Kennedy denounced Justice William Rehnquist as "too extreme" to serve as chief justice. Kennedy was a true progressive. He didn't want conservative justices deciding cases in a way that dismayed him. In 1986, Kennedy could have said that. Can you imagine how his remarks would have read the next day in the New York Times? "I like Roe v. Wade, and gun control. I don't like vouchers for schools. I hate laws that make it harder for African-Americans to vote at the polls. Want my vote on the Senate floor? Then you have to promise now to decide cases involving those things the same way I would if I were a judge. I care a lot less about the Constitution than about the results in court."

Kennedy could have said that, but he didn't. This was because it wouldn't have sounded nearly as righteous as what he did say: that Rehnquist had an "appalling record on race" and a "virtually unblemished record of opposition to individual rights." This was nonsense. Rehnquist earned an easy confirmation. He served the court with distinction until his death in 2005.

Gorsuch believes in "originalism," as Rehnquist did. This is the idea that, in interpreting the letter of legal texts, we should give effect to what their drafters intended at the time. The late Supreme Court Justice Antonin Scalia is a sort of saint, or superhero, among originalists.

I am no constitutional lawyer, but even I know that originalism depends on a large conceit. The conceit is that we can rightly interpret the Constitution and laws by limiting their meaning to what their adopters meant at the time. Of course, achieving an honest understanding of what framers and legislators meant centuries ago is fraught with uncertainty, like trying to figure out what the late baseball commissioner Kenesaw Mountain Landis would think of instant replay in major league baseball today. Where amid Landis' writings would you look to find the answer?

Even where understanding original intent can be done with certainty, it seems the good that comes from going through the exercise is variable. And the good that comes from skipping it seems undeniable in many instances. The Supreme Court has decided several big cases in ways that would have left the framers aghast. No one on the court pretended that the framers meant to forbid states from outlawing the sale of contraceptives. Or wanted a rule that disabled police officers from questioning suspects without first having warned them about incriminating themselves. Or thought a federal court should force a restaurant to allow black patrons to eat there after finding that the restaurant had ordered meat from a supplier who procured it from a neighboring state, thereby putting the restaurant in "interstate commerce." And so on. Yet, the court has ruled the Constitution requires all of these things. Most would agree our country is better for it.

You may argue that the Supreme Court should have used originalist interpretation in deciding Griswold v. Connecticut, Miranda v. Arizona, Gideon v. Wainwright, Katzenbach v. McClung and others. If you do, then you have to admit something else: relying on originalism in those cases would have meant outcomes that most of us would find unjust. No access to contraceptives, depending on where you lived. Coerced confessions and false criminal convictions. Segregated lunch counters and public schools (again, depending on where you lived). These things and others were ugly realities of American life for years - until the Supreme Court abrogated them. Except for a near-lunatic fringe, there are few among us who regret that the court did. Nor do I guess there are any who would deny the inaction and impotence of the other two branches of the federal government which caused and perpetuated those ugly realities in the first place.

It is not just that originalism can yield results that most of us would find unjust and un-American. It's that the very idea of originalism seems dumb. This seems especially so when it comes to interpreting words written in 1791. Consider a few things the framers couldn't have possibly foreseen in 1791. Self-driving cars. National television. A permanent, colossal, peacetime military establishment. GPS technology. A welfare state. Computers. (Gorsuch himself alluded to some of these in his testimony before the Senate.) Pretending that we can know what the framers would have done if they were only alive and here with us today instead of dead and turning to mold in the ground is absurd. Only in a fantasy could you reanimate Thomas Jefferson and ask him what he thinks of Pussy Riot.

A more honest approach seems to be embodied in Judge Richard Posner's recent concurring opinion in Hively v. Ivy Tech Community College of Indiana. In Hively, the 7th U.S. Circuit Court of Appeals held that the Civil Rights Act of 1964 prohibited discrimination on the basis of sexual orientation. Posner addressed the reality: No congressman who voted for the Civil Rights Act intended it to protect gay men and lesbians. But to Posner, that posed no obstacle to finding the statute protected the very people that Congress wasn't thinking of at all in 1964. Posner pointed out several examples of the Supreme Court's having interpreted constitutional provisions and laws on the basis of "present need and understanding rather than original meaning." In emphasizing how the courts properly give new meaning to old constitutional clauses and statutes, he quoted Oliver Wendell Holmes Jr.: "We must consider what this country has become in deciding what [the Tenth Amendment] has reserved." (Emphasis added.)

Hively came out April 4. I wonder if the leadership of the Federalist Society has read it. If so, maybe they are considering revoking Posner's membership.

I'm no scholar. But I do grow weary of pretending. As citizens and lawyers, we can't do anything, really, about the composition of the Supreme Court. But, amongst ourselves, we can stop pretending some things. Here's my short list of those things:

* Supreme Court justices' decisions don't sometimes reflect their personal political philosophies. (See Bush v. Gore.)

* Commentators (including some who write in these pages) who invoke love of the Constitution as a basis for supporting or opposing a nominee to the Supreme Court really just want a nominee who would deliver outcomes that they personally like.

* The swearing-in of Gorsuch, or any other candidate rated "well qualified" by the ABA, threatens a calamity to our country or its people.

* Our federal Constitution is so wonderful in the first place.

Does the last one shock you? Many adore the Constitution as a model for peoples the world over. And there is much to admire there. Yet there are other clauses. They jump off the page amid the more familiar ones. Preserving the slave trade and capping taxes thereon at $10 per head (Art. I, Section 9). Requiring delivery of escaped slaves back to their owners upon due demand even if they were found in free states (Art. IV, Section 4). And the obsolete antidemocratic dinosaur known as the Electoral College (Art. II, Section 1).

We've amended the Constitution, I know. But expecting that any of movement afoot in the country today could possibly result in an amendment of the Constitution in our lifetimes seems delusional. The amendment process is too hard, too beset by the big money and dark money which are the scourge of our national politics, too elaborate. This reality, too, seems like something that the framers could not have imagined when they provided for amendments in the first place.

So far as I can tell, Oliver Wendell Holmes Jr. was no progressive. But he did not believe in legal texts as something that are dead, static, impervious to interpretation by those who must live with it today, enslaved to the meaning supposedly intended by the long since departed. He wrote: "The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong." O. W. Holmes Jr., "The Common Law," 13 (1881).) What's wrong with that?

Godspeed, Neil Gorsuch. I think he, and we, are all going to be fine.