Amanda: The Federalist Society’s longest-lasting achievement might be its promotion of originalism, which it moved from a wacky off-the-wall legal theory to the dominant theory of constitutional interpretation. And the real metric, I think, of this success is the extent to which liberals on the Court and in the legal academy believe that they need to engage with originalist arguments on originalism’s terms.
The left doesn’t spend its time trying to debunk originalism. That happened at the beginning, when Justice William Brennan called originalism “arrogance cloaked as humility.” His point was that there’s no way to know the intentions of the Founding Fathers, so it’s arrogant to pretend we could. And originalism is cloaked in humility because originalists claim that they’re not drawing on their own subjective beliefs, and as Brennan said, that’s bullshit.
But the left has realized that there’s some inherent appeal with originalism—because if not the Founding Fathers’ beliefs, then whose? And that opens up the door to the critique that liberal judges who are not embracing originalism are just projecting their own values onto the Constitution. That’s the critique the left has really struggled to respond to.
Peter: It seems like a lot of the success is mostly due to the fact that the left was never really able to articulate a positive theory of their own.
Amanda: Scalia once said that when you go to the voting booth, if you don’t like Reagan, you can’t vote for Not Reagan—that you have to put up your own candidate. I do think that there’s been some effort on the left to do that. But there’s no consensus—no single theory the left has organized around, and certainly no single Supreme Court justice.
Antonin Scalia has probably done more work than anyone to legitimate originalism, and he was one of the earliest faculty advisors of the Federalist Society. Many of its founding members went on to clerk for Scalia, and took originalism beyond the law schools and integrated it into the fabric of everything. The way conservatives talked about the law, from members of Congress to law students to members of professional legal associations to members of the media—they all sort of fell in line around originalism. That’s something the left has been either unwilling or unable to do so far.