During confirmation hearings in recent years, the judicial philosophy known as originalism has faced nearly as much media scrutiny as the judicial nominees themselves.
When asked to explain this philosophy, then-Supreme Court nominee Amy Coney Barrett explained, “in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.” Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought “seeks to conserve the meaning of the Constitution as it was written.”
Put another way, originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by “We the People.” And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a “government of laws, not of men.”
But some have argued that originalism is simply a stalking horse that allows conservative justices to “rule in accord with their personal politics.” Aziz Huq, a professor of law at the University of Chicago, said that originalism is often used on the right as a philosophical fig leaf for a conservative political agenda. “The political discourse of originalism is closely aligned with the policy preferences of the Republican Party that has promoted judges who happen to take this perspective,” Huq said. “It purports to be something that is moving outside politics, but it is — in its origins, and in the way that it has been applied in the courts — it is tightly linked to a particular partisan political orientation.”
Given this allegation, it’s worth noting cases where originalism did not result in right-of-center outcomes. Gorsuch has highlighted instances where originalism leads — or should lead — to outcomes considered left-leaning, such as upholding protesters’ right to burn the American flag, preventing the government from putting a GPS tracking device on your car without a warrant or providing more robust protections for criminals or illegal aliens. Indeed, originalist methodology has been employed at one time or another by all nine of the sitting justices. As Justice Elena Kagan noted in her confirmation hearing remarks, “We are all originalists.”
In other words, originalism done correctly should lead to rulings that are less likely to reflect the mere partisan preferences of a jurist. One particularly striking example of this phenomenon comes from over half a century ago, involving a judge who professor Noah Feldman argues was the “first to frame originalism as a definitive constitutional theory.”
In December 1952, nine justices sat in a private conference to decide what they likely knew would be the most important case of their careers: Brown v. Board of Education. The case turned on whether the equal protection clause of the 14th Amendment made racial separation inherently unequal. Though the court ultimately issued its famous unanimous opinion a year and a half later, the court’s deliberations began with the justices deeply divided on how to rule.
Chief Justice Fred M. Vinson began the conference by saying that he did not think the court would put an end to segregation. He said he was worried about the consequences for the country if a judicial decision mandated an immediate end to segregation. The Southern states might abolish their entire school systems. And this turned out to be a realistic concern, as a few cities and towns did close their schools or other public services rather than allow integration.
Besides the chief justice, there were three other sitting justices on the court who had experience with segregation: Stanley Reed from Kentucky, Tom Clark from segregated Dallas and Hugo Black, a former Ku Klux Klan member from the Deep South. In this December 1952 conference, none of these Southern justices were willing to hold segregation unconstitutional. None, except for Black.
Black agreed with Vinson about the reality of an inevitable and overwhelming Southern backlash to a desegregation ruling from the court. He knew that the consequences would likely include violent riots and ruined political careers.
Yet despite this outcome clashing with what one might have expected of Black’s personal politics, Harvard Law School’s Feldman described Black as “the strongest internal voice on the Supreme Court” for ending “separate but equal” racial segregation. His ruling took “exceptional bravery, more so than for any of his colleagues.” How to explain this counterintuitive contradiction?
Black was convinced that “the original meaning of the 14th Amendment and its two Reconstruction-era companions,” the 13th and 15th amendments, required ending this discriminatory regime. Black believed these amendments required the abolition of racial caste. And the purpose of segregation was to subordinate African Americans, and thus perpetuate a racial caste. This was in direct violation of the original meaning of the Constitution, and Black believed the court had no choice but to say so.
A justice’s role, Black believed, was to give effect to the original meaning of constitutional text without regard to consequence. Fidelity to that constitutional meaning had to be elevated above shifting partisan politics and fluid policy preferences.
Though few now, progressive or conservative, take issue with the holding in Brown, at the time it was a major progressive victory. And the ideal that animated Black’s courageous defense of desegregation continues to animate the originalist judicial philosophy today.
On the flip side of arguments that originalism is too permissive of conservative outcomes, others such as Sen. Angus King Jr. and historian Heather Cox Richardson argue that originalism is too restrictive, like a “straitjacket” or a “derelict sailing ship locked in the ice of a world far from our own.”
Under this view, originalism prevents jurists from turning the Constitution into a “sturdy vessel of our ideals and aspirations.” These judges should instead be able to “recognize that our understanding of our principles and values has expanded over time,” and judges must “interpret the law in the context of that growth.”
The sonorous rhetoric of this approach sounds appealing. At least, it does if the sitting justices share the same “ideals,” “aspirations” and “values” of the proponents of this approach.
But what if the judges don’t share these values? Worse yet, what if the values of the judges are wrongheaded or even unjust?
Some of the most infamous, anti-progressive Supreme Court decisions in U.S. history were written by justices who eschewed an originalist form of interpretation in favor of their own view of what the optimal outcome in the case would be. These include Dred Scott v. Sanford, where Chief Justice Roger B. Taney ruled that African Americans were not citizens of the United States, despite a vigorous dissent by Justice Benjamin Robbins Curtis relying on historical evidence to the contrary. Or Plessy v. Ferguson, a case that ignored both prior precedent and the text of the 14th Amendment to uphold the nefarious “separate but equal” doctrine, which marshaled in a shameful era of Jim Crow discrimination.
Indeed, for a modern foil of originalism, progressives need look no further than the recent common-good constitutionalism movement, championed by professors like Adrian Vermeule, the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School.
Vermeule argues, “Originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” Under this theory, conservative judges should interpret the law with outcomes that help direct government and society toward the judges’ view of the “common good,” based on moral reasoning.
One might ask a progressive individual whether they really prefer a common-good constitutionalist to an originalist conservative judge. Empowering judges to engage in thick moral reasoning even in the face of clear, determinate meaning may sound nice when judges share our values. But that framework is antithetical to a government of laws, and not of men.
When William Roper famously says in Robert Bolt’s play that he’d “cut down every law in England” to get to the devil, Sir Thomas More responds, “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
Giving the devil the benefit of the law is the genius of originalism. Sometimes it leads to results that are unpopular. And often, originalism leads to outcomes that cut across partisan divides. As Barrett explained, “Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”
Indeed, if an originalist judge likes and politically agrees with all of her rulings, that almost certainly means she’s not doing it right.
Stephanie Barclay is an associate professor of law and the director of the Religious Liberty Initiative at the University of Notre Dame.