Does Originalism Matter Anymore?
To the ‘originalists’ on the Supreme Court, apparently not.
Much has been made over whether Judge Brett Kavanaugh is an originalist.
But does it really matter? Not much, if you look at the recent rulings of other Supreme Court justices who have said they interpret the Constitution by reading its provisions as they were understood at the time they were written.
Certainly it mattered to President Trump in nominating him to the Supreme Court. In Judge Kavanaugh, the president said he saw a jurist in the mold of Justice Antonin Scalia, who died in 2016 and was the court’s leading proponent of originalism. Justice Scalia used to tour the country telling audiences that the Constitution is not a “living document” but is “Dead, dead, dead.”
Similarly, Leonard Leo, the president’s key adviser on judges, and a top official (on leave) in the conservative Federalist Society, recently said Mr. Trump wanted his nominee to “interpret the Constitution the way the framers meant it to be.”
For the record, Judge Kavanaugh was asked at his confirmation hearing Wednesday whether he was an originalist. “Yes,” he answered, “original public meaning, as informed by precedent.”
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But will Judge Kavanaugh actually be a justice who will follow that approach? A look at the two justices who have professed fidelity to the doctrine is instructive.
With Justice Scalia gone, Justice Clarence Thomas has inherited the mantle of originalism, an approach he has endorsed for nearly three decades. As he explained in a 2008 lecture to the conservative Manhattan Institute, “there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up.”
In that vein, he has taken strong issue with his colleagues for striking down laws without an originalist basis, objecting in cases affirming abortion and gay rights, and taking an expansive view of Congress’s regulatory power under the commerce clause, among many others.
Justice Neil Gorsuch, likewise, repeatedly testified to his originalist bona fides during his confirmation hearing in March 2017 by saying that “I’m happy to be called” an originalist. In a speech he gave in 2016, he said that judges should strive “to apply the law as it is, focusing backward, not forward.”
The problem with these appeals to originalism, and the impartiality they connote, is that they have not held true in practice. Which is why to critics, and I’m one of them, the label of originalist strikes us as a cover for imposing conservative value judgments.
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Consider that Justice Thomas, along with Justice Scalia, voted to strike down huge swaths of constitutional law without historical justification. Together they invalidated state and federal affirmative action laws, campaign finance legislation, federal laws directing the states to help implement national programs such as background checks for gun purchasers, and many other important pieces of legislation without relying on persuasive originalist evidence.
Justice Gorsuch has only been on the court for a term and a half, but he has already joined with Justice Thomas (and the other conservatives) several times to strike down state laws without relying on originalist sources.
In his first term, for instance, Justice Gorsuch sided with Justice Thomas to strike down a 19th century section of the Missouri State Constitution that prohibited public money from going directly to religious institutions. Their broadly worded concurring opinion did not even reference the original meaning of the First Amendment’s “free exercise” clause, probably because they couldn’t.
Bruce Ledewitz, a law professor at Duquesne University who specializes in law and religion, wrote that “there is no way to interpret that original public meaning and come to the conclusion that a government’s refusal to provide public funds directly to a church could violate the Free Exercise Clause.” Finding no support in original meaning, as Professor Ledewitz persuasively argues, their decision was simply based on contestable, modern value judgments about the appropriate relationship between church and state.
The most recent term brought much more of the same. The Supreme Court voted to invalidate a Colorado nondiscrimination law as it applied to a baker who refused to provide a cake to a same-sex wedding. The majority issued a narrow decision unrelated to free speech and based on what they saw as biased comments made by state officials who had earlier ruled against the baker. But Justices Thomas and Gorsuch wrote a much broader opinion objecting to the law on free speech grounds and strongly suggesting that bakers should never have to make cakes for same-sex weddings. Their concurrence did not even mention what they saw as the First Amendment’s original meaning.
The court also voted to strike down 23 state laws that required nonunion public sector employees to pay union fees if they were covered by collective bargaining agreements negotiated by the union; a Minnesota law that prohibited the wearing of political apparel in voting places; and a California law that required “pregnancy crisis centers” to post information regarding state abortion services.
In the union and political apparel cases, Justices Thomas and Gorsuch joined majority opinions written by Justices Samuel Alito and John Roberts that did not rely on original meaning. In the union case, for example, Justice Alito wrote that we “can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public sector unions could charge nonmembers agency fees.” One prominent originalist, Michael Ramsey, a law professor at the University of San Diego, and a former clerk to Justice Scalia, said about this case, “I do not see the originalist argument for the challengers in this case.”
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The reality is that, as the law professors Will Baude of the University of Chicago and Eugene Volokh of U.C.L.A. argued in an amicus brief, neither free speech principles nor prior case law supported the justices’ decision to overrule the policy judgments of almost half the states on how to regulate public sector unions.
The court also struck down California’s law requiring pregnancy crisis centers to provide information about state abortion services. Justice Thomas’ majority opinion was not based on the First Amendment’s original meaning but rather on his view that the law at issue impermissibly interfered with the clinics’ right to advocate against abortion. The problem with that argument is that those clinics were free to say anything they wanted about abortion anytime, anywhere, and anyplace.
All of which is to say that, for these originalists, originalism didn’t figure very importantly, if at all, in how they cast their votes on some of the court’s most consequential recent cases. Instead, they used, for their own ends, the same type of values-based living constitutionalism that they and other conservative jurists and politicians typically decry.
Eric J. Segall is a law professor at Georgia State University and is the author of the forthcoming book “Originalism as Faith.”
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