Balkin on the Structure and Limits of Interpretive Approaches Mike Rappaport

Jack Balkin has an interesting post on the structure and limits of interpretive approaches.  He states that he favors what he calls a form originalism.  But he argues that what disciplines or constrains the Supreme Court is not interpretive approaches, but instead a set of structural features, such as the requirement that judges write opinions, their internalization of certain legal norms, and the appointment process.  Especially given the different interpretive theories out there, one can’t expect interpretive theory to be the primary constraint on courts. 

This is an interesting theory, and one with which I have some sympathy.  In the world we live in, interpretive theories don’t constrain courts overall.  Justice Breyer is not limited by originalism, because he is not an originalist (nor is he even limited by his own interpretive approach — see my review of his book here — but that is another story).  The structural constraints on judges may stop them from doing anything they might want, but those constraints certainly do not operate to force them to be originalists (of course, we knew that already).  As Balkin says, the constraints “keep the system of judicial review roughly functional and in sync with the political system.”

What then to say of the much heralded constraints that originalism imposes on judges?  Are they real or a mirage?  I think these constraints are real, but they are self imposed.  Originalist judges are led to legal conclusions that they would not have reached if they were free to read in their policy views, as nonoriginalists judges often are.  But these originalist constraints only apply to originalist judges and most judges don’t acknowledge those constraints.  So we are left with a self imposed constraint.  It will actually have an effect if the judge adopts it, but it will not operate to restrain judges who reject it.