I previously critiqued Lawrence Lessig’s brief in McCutcheon, questioning what difference the founding generation’s conception of “corruption” makes for a term introduced during the 1970s. (More from the Originalism Blog).
Unsurprisingly, the Solicitor General made no reference to the brief, and none of the Justices seemed remotely interested in the issue.
In response, Lessig writes an article in the Atlantic titled “Obama’s Lawyer Should Have Used Originalism to Sway Originalist Justices.” Lessig makes a fair point that originalist Justices like Scalia should have been swayed by originalism.
If “corruption” means just an illegal “quid pro quo,” that indeed is a very hard question, as the solicitor general discovered this week. Yet for an “honest originalist,” as Justice Antonin Scalia recently described his judicial philosophy, and presumably, the philosophy of the other four originalists on the Supreme Court, there’s a pretty obvious reason why a system in which Congress is dependent upon 25,000 individuals would be a “corruption.”
I have argued elsewhere that Scalia is not truly an originalist, a faint-hearted or otherwise, after his vote in McDonald v. Chicago.
But then, Lessig directs his attention towards Solicitor General Verrilli:
Yet it is a measure of the pervasive partisanship that is Washington today that it doesn’t even occur to Obama’s solicitor general to suggest a politically conservative argument to Chief Justice John Roberts’s Court that, if applied honestly, might well yield a politically liberal result. That may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court. Either way, it is astonishing. Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected. And so the government leads the Court to do what most Americans expect it will do anyway: Confirm an ideology, rather than honestly follow a principle that might well track something other than simple ideology.
This is somewhat a replay of the dynamics in NFIB v. Sebelius, where prominent academics were upset that the Solicitor General did not rely on originalist-esque argument that in the early years of the Republic, the Congress mandated that militiamen purchase rifles. This was used as historical evidence to justify the individual mandate.
As I discuss in my new essay forthcoming in the Illinois Law Review, Obamacare and Man at Yale, I was told that Verrilli was not as receptive to academic arguments as his predecessor, Neal Katyal, and considered the militia argument to be, at best, “footnote material.”
Further, the professors also were not happy with Verrilli’s strategy. One participant said that Verrilli was leaving the best possible arguments “on the table,” while the conservatives brought their “A-game.” The narrative quickly became, “it was Don’s fault. If someone decent had argued the case,” it would have been much better. Or more precisely, “If Don would have just listened to us, he wouldn’t have messed up.”
In conversations with senior DOJ attorneys, I learned that the solicitor general apparently did not “lose any sleep” over discounting the professors’ opinions. Many of their arguments, especially those based on rifle-mandates for militiamen in early America,19 were, I was told, at best, “footnote material.”
In my interviews with Senior DOJ lawyers, over and over again it was stressed how the SG sought to get five votes, with less of a concern how to get there, than academics may like. Note that none of the originalist arguments made in Fisher v. Texas got any attention in Court. In McCutcheon, it seems the Solicitor General was unpersuaded by the historical account, and made the effort to win the case. This is likely the crux of Lessig’s legal realist claim.
Update: More from Originalism Blog.