The bottom line is that nonadherents understandably see originalism and living constitutionalism alike as smoke screens for imposing the justices' personal policy preferences.
This is not healthy. How might we avoid the worst excesses of each approach?
The best answer is judicial modesty, in the sense of great hesitation to second-guess decisions by other branches of government. Embraced in general terms by then-Judges John Roberts and Samuel Alito during their Supreme Court confirmation hearings, the judicial-modesty approach is expounded more fully in a November 2005 Harvard Law Review article by Posner, a prolific and ideologically eclectic legal scholar.
Posner begins by puncturing the myth that judging can ever be completely apolitical. In constitutional cases, he shows, the Court is unavoidably "a political body ... exercising discretion comparable in breadth to that of a legislature." The most sincere attempt at "lining up the facts alongside the constitutional text" usually provides no more objective a basis for preferring one outcome to another than for "preferring a margarita to a cosmopolitan."
Next Posner explains that the justices would look and act less like political manipulators if they "acknowledged to themselves the essentially personal, subjective, and indeed arbitrary character of most of their constitutional decisions." Such self-awareness is rare among justices, Posner says, because it "would open a psychologically disturbing gap between their official and their actual job descriptions."
Instead, "cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court justices are at risk of acquiring exaggerated opinions of their ability and character."
The path of wisdom would be to acknowledge that "the law made me do it" is usually no more than a "rationalization for the assertion of power" of an essentially political nature, Posner adds. Justices who understood this would probably be "less aggressive upsetters of political and policy applecarts than they are."
Judicial modesty also converges with a pragmatic focus on what will be the actual consequences of a proposed decision. Three of Posner's examples—cases in which "the law" did not dictate any particular outcome—are illustrative.
First, he applauds the 5-4 decision (over a liberal dissent) in 2002 to allow Cleveland to finance vouchers enabling low-income children to leave failed public schools for mostly Catholic private schools. The major disputes underlying the case—over whether the Cleveland experiment would work well for children and whether it would lead to sectarian conflict—turned on factual projections beyond the Court's competence.
"Actual social experiments are necessary to generate the data needed for intelligent constitutional rule-making," explains Posner. "The pragmatist wants to base decisions on consequences, and it is very difficult to determine the consequences of a challenged policy if you squelch it at the outset."