Who's Really Original Constructionist? The Answer Is Blowin' In The Wind ...

Conventional wisdom posits that the US Supreme Court's conservatives are originalists, who find conclusive arguments about constitutional history, while the Court's more liberal members are living constitutionalists, who discount history in favor of modern interpretations of the constitution.

These caricatures are getting less accurate every day, as is on vivid display in today's 5-4 opinion in Sprint Communications Co. v. APCC Services, US SC 07-552 which settled the question of whether legal claims can be assigned to collection firms that do not get any part of the money collected in successful suits (they can be).

In his majority opinion, Justice Stephen Breyer, often dismissed by his critics as a living constitutionalist, spends most of his opinion detailing assignment law from its inception in 17th Century England, through the Colonial Era in the United States, and culminating in the settled practice in States across the country from the mid-1850's to allow "suits by assignees for collection only." Breyer's calls this history "well nigh conclusive" (quoting an earlier opinion by Justice Scalia) and his opinion for the Court includes a 6-page appendix listing cases decided from 1876 to 1925 where state courts entertained or approved of such suits.

Chief Justice Roberts, on the other hand, declares this history ambiguous and he relies almost entirely upon implications he draws from modern standing cases for the proposition that collection firms must have an actual stake in the payout of any claims they bring. In a passage of his opinion that would make the most ardent living constitutionalist proud (or even blush), Roberts cites (dissent page 4) the legal analysis of Bob Dylan, for the legal proposition: "when you got nothing, you got nothing to lose."

As the Sprint case indicates, the Supreme Court's liberals are increasingly finding that constitutional history supports progressive outcomes such as broad access to court, while the Court's conservatives are more than willing to discount historical arguments when they find them inconvenient. The same was true in the Guantanamo cases, where Justice Scalia responded to Justice Kennedy's scholarly analysis of text and history mainly with fear-mongering and overheated rhetoric. When it comes to conservative and liberal approaches to judging, one thing is clear:

The times they are a-changin'.