The Center for the Study of Constitutional Originalism at the University of San Diego has held an annual conference on originalism for the past 12 years. Every year at the beginning of the conference, I discuss what I consider to be the most important events in terms of originalism over the past year. Last year I noted on this page that the most significant event for the first time in many years included no vacancy or Supreme Court appointment, such as the death of Justice Scalia, the appointment and appointment of Justice Gorsuch, or the appointment of Justice Kavanaugh.
Last year, however, the significance of the Supreme Court appointments returned with a vengeance. The main event for originalism was the appointment of Amy Coney Barrett as the seat of Justice Ginsburg. This event is important not only because it replaces a progressive with a conservative, but because it replaces a strong non-originalist with a strong originalist, which moves the Court significantly in the direction of originalism.
Justice Barrett appears to be a strong originalist – one whose commitment to originalism is paramount to her voting and reasoning. Evidence of her original belief – and something important in itself – is that, prior to her appointment, Barrett was clearly associated with originalism more than any other judiciary in modern times. Some candidates had some smaller associations (like Justice Gorsuch), others not much at all (like Justice Kavanaugh). But Barrett had a long trail of paper that directly indicated that she was an originalist.
As a result of that appointment, there are now four well-known originalists at the court – Thomas, Gorsuch, Kavanaugh, and Barrett. That said, there are now more originalists in the court than progressive non-originalists. Let’s repeat that: more originalists than progressive non-originalists! It’s just amazing. When I graduated from law school in the 1980s, there wasn’t a single originalist at court. Some may view this situation as heaven and others as hell, but from a 1980s perspective it hardly seems like the real world.
Originalists are the largest constituency in the Court today. The largest voting group, whatever it is, is likely to have an oversized effect. The influence of this group grows even stronger as they hang out frequently with fellow travelers like Justice Alito and perhaps Chief Justice Roberts.
Barrett’s appointment is also important as it will likely take away power from Chief Justice Roberts. While Roberts is a wonderful craftsman and can write originalist opinions at times, he does not appear to be essentially an originalist. Before Barrett was appointed, Roberts briefly had tremendous power as both chief judge and median judge. But not anymore. With Barrett in the courtroom, Justice Kavanaugh, an originalist, will likely become middle justice.
I say this with caution, however, as the originalism of Justice Kavanaugh is by no means proven. Prior to his verification hearing, Kavanaugh did not call himself an originalist. And while he now calls himself an originalist, he votes with Chief Justice Roberts the most and the second most often with Justice Alito – neither of which I would call an originalist. When Kavanaugh is more like Roberts and less of an originalist than advertised, that changes things. Then there are three groups – three progressive non-originalists, three originalists, and another group of largely conservative non-originalists. It wouldn’t be terrible for originalists, but they would be less influential.
In addition to Barrett’s appointment, some very important cases were resolved over the past year. I want to draw attention to three of them because they show how originalism sometimes works differently than we expect or hope.
First, there was the Chiafalo or “faithless voters” case – a case that I consider a disaster for originalism. In my view, in this case, Professor Larry Lessig gave the Tribunal its original meaning on a silver platter – that states could not control how the presidential elections voted. However, in a statement from Judge Kagan and seven judges who allegedly followed an originalist analysis, the court ruled that states could control voters. In my view, not a single righteousness has properly understood the original meaning – not even righteousness Gorsuch in his consent. Chiafalo shows that a commitment to originalism does not guarantee a high quality originalistic judgment.
Second, another originalist error occurred in Bostock against Clayton County, stating that the prohibition of gender discrimination in Title VII covered sexual orientation and discrimination based on transgender status. Here the Tribunal contends, “the ordinary public meaning of [the statute’s] Effective Date Conditions. “But instead of pursuing genuine originalism, the Court followed either some form of literalism or non-originalist legal analysis to arrive at a conclusion that contradicted the original public meaning. But unlike Chiafalo, at least the “originalist” opinion of the Bostock majority was only endorsed by one originalist – Justice Gorsuch – while the other originalists disagreed. Bostock shows that originalists often disagree among themselves on their methodology.
So we have an originalistic court, in cases that are supposed to be decided on originalistic reasons and misunderstand the original meaning. And in either case, it is probably no coincidence that the majority have achieved results that many, given today’s sensibility, consider desirable. Still, I think this is progress as the Court is at least pretending to be basing itself on originalism.
If originalism is to be completely successful, it must become the method of interpretation for both parties.
The Seila Law case sounded happier to originalists. In this case, the Court ruled that the director of the Bureau of Consumer Financial Protection cannot be removed for just cause. The court did not override Humphrey’s executor’s finding that commissions could be made independent of the President’s scrutiny, but narrowly interpreted the case in light of its original meaning. The Seila Law shows how originalism can have an important impact without overriding the non-originalist precedent.
The last originalist event I’ll talk about brings us back to Barrett’s confirmation. The hearings were a politically polarized affair and, unfortunately, originalism got into controversy. The most disturbing part was a speech by Senator Ed Markey. In a speech that had many unfortunate things to say, the worst part was his slanderous claim: “Originalism is racist. Originalism is sexist. Originalism is homophobic. “
I react to his statement in two ways. On the one hand, in a world where so many things are wrongly criticized as racist, sexist and homophobic, why should originalism – which has become so important – be exempted? The charge is unfair and unfortunate, but in a strange way it shows the importance of originalism.
On the other hand, the effects of this statement cannot be dismissed with such casualness. This kind of statement from a prominent democratic politician suggests that originalism is both partisan and unreasonable. And it makes originalism harder to gain acceptance. not just from Republicans, but from Democrats as well
If originalism is to be completely successful, it must become the method of interpretation for both parties. If you look at interpretive approaches that have prevailed at various times in history, including non-originalism in the mid-20th century, there was not a single version of this case law. Instead, there would be at least two approaches that address different parts of the political spectrum.
If we want to see an originalist court, we need originalists appointed by democratic presidents. Realistically, this will involve a different kind of originalism than mine – perhaps one more like the originalism of Jack Balkin and the Constitutional Accountability Center – but originalism nonetheless. Calling originalism racist, sexist, and homophobic makes it difficult for progressives to be originalists.
Over the past year, originalism has shown the signs of a vibrant and growing movement. We have seen the appointment of a strong originalist judiciary and the emergence of a multitude of originalist judges. However, the success of originalism has also led to less fortunate events such as unfair senatorial attacks and wrong originalist decisions. So overall, the year was mixed, but it still looked promising for the future.