The other day I received a really smart and interesting email from a reader named Raghav Krishnapriyan in response to my second post on “disciplinary originalism” in SCOTUS decisions. Here’s a key passage:
I was surprised, however, to see Justice Jackson’s dissent in Korematsu cited as an exemplar of disciplinary originalism, since as far as I can tell, there’s nothing distinctively originalist about it. And insofar as either Jackson or Black (the author of the majority opinion) can be thought of as an originalist avant la lettre, I would have thought it would be Black, the textualist, rather than Jackson, the quintessential pragmatist.
We’re speaking here, after all, of the same Justice Jackson whose second most famous opinion began with the following candid acknowledgement:
“That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction.” [Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).]
Over and over one finds in his opinions references to the potential consequences that would follow if a case were decided a certain way, with an implicit or explicit suggestion that these consequences played a role in his decisionmaking process. See, e.g., Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting) (“The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”); McDonald v. United States, 335 U.S. 451, 460 (1948) (Jackson, J., concurring) (“I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued.”); W. Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) (“Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.”). It seems to me like these sorts of considerations are antithetical to originalism of any variety.
Again, a superbly well-informed and thoughtful reply. I will of course disagree with it, at least in part.
First, though, I want to say that I find it more useful in these discussions to commend arguments than to commend justices. It is very rare to find a SCOTUS justice, or indeed any judge, whose decisions are greatly consistent with one another. Some legal scholars worry about this a lot, and believe they achieve a considerable degree of consistency. Others think that the achievement of consistency over time is nearly impossible and should not be the focus of obsessive attention. Justice Cardozo, for instance, in a famous book, commented,
It is well enough to say that we shall be consistent, but consistent with what? Shall it be consistency with the origins of the rule, the course and tendency of development? Shall it be consistency with logic or philosophy or the fundamental conceptions of jurisprudence as disclosed by analysis of our own and foreign systems? All these loyalties are possible. All have sometimes prevailed. How are we to choose between them? Putting that question aside, how do we choose between them?
He thought it was best to judge each case on its merits and not try to force one’s decisions into a pigeonhole, not to be afflicted by that “hobgoblin of little minds” that Emerson spoke of.
With all this in mind, my commendation was of a particular decision by Justice Jackson, not of Jackson’s jurisprudence more generally. I take Raghav’s point about the general tendency of Jackson’s legal reasoning.
Still, I think Youngstown is pretty useful in illustrating the points I have been trying to make in my two earlier posts on these matters, and in this one. Viz.:
1) Raghav writes of Hugo Black as a textualist, and he certainly is in Youngstown, where he refuses to allow Presidential powers not specified in the Constitution; but earlier, in the Korematsu decision from which Jackson so eloquently dissented … not so much. Thus illustrating my point about the rarity of judicial consistency, and also illustrating the intrinsic difficulties of methodological originalism, or methodological textualism, if you will.
2) By contrast, I love Jackson’s concurrence in Youngstown precisely because it acknowledges that there are multiple forces at work in any major judicial decision, multiple obligations for any justice. (This is also Cardozo’s point in the passage I quoted above.) He points out that one must look not just at the relevant judicial history, but also the contemporary legislative context: e.g., is the President in attempting to extend his powers acting in defiance of the express will of Congress? I read Jackson’s concurrence as a kind of correction of Black’s supposed textualism. Jackson is saying to Black, “Yes, you’ve reached the right decision in this case, but you are wrong to suggest that this is, or can be, a matter of simply reading the Constitutional text and saying, ‘Nope, nothing about seizing steel mills there.’ You may think that you made your decision on purely textual grounds, but you didn’t, because none of us ever does.”
3) Thus I think that Jackson’s concurrence in Youngstown operates under the same general jurisprudential logic as his dissent in Korematsu. He acknowledges that strict methodological textualism, or originalism, is impossible; but he refuses to accept that the only alternative to such an interpretative standard is Laurence Tribe’s model of reading the Constitution pragmatically, as an instrument for allowing us to get what we want — especially when “us” is the office of the President. So I think that in both Korematsu and in Youngstown Jackson is indeed manifesting the kind of skeptical restraint of expanding governmental power that I see as intrinsic to disciplinary (as opposed to methodological) originalism. This is a matter not of hermeneutical theory and the application thereof, but of temperament and disposition. If Jackson did not always act according to this disposition, and I grant Raghav’s point that he did not, he nevertheless managed to do so in some vitally important cases, and in them provides a model that I wish more justices would follow.
All that said, IANAL, so take this for what it’s worth. But at the very least, in this period of ever-increasing executive-branch power, it’s worth our while to meditate on both Korematsu and Youngstown. There’s much to be learned from both cases.