This article is one half of a discussion on originalism in American jurisprudence. For its companion, which argues that originalism limits the abuse of judicial authority for political ends, click here.
“This small hearing room and the little TV box that you’re looking at . . . are a little bit like the frame of a puppet theater. And if you only look at what’s going on in the puppet theater, you’re not going to understand the whole story. You’re not going to understand the real dynamic, what is going on here. And you’re certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.”
–Senator Sheldon Whitehouse, day two of the Amy Coney Barrett hearings
Conservatives have long considered themselves adherents of originalist jurisprudence. They define this as the natural state of the judiciary, against the legal left’s “living constitutionalism,” which they deride as “judicial activism.” Originalism holds that the Constitution’s meaning was fixed when it was written, and can only be viewed in that light. Through this nebulous philosophy, conservatives hold the country hostage in the eighteenth century.
As a result, they view Antonin Scalia as a hero. The late Supreme Court justice served for thirty years and influenced a generation of law students. Even Justice Elena Kagan—the biggest target of conservative discontent since the passing of Justice Ruth Bader Ginsburg—noted that Scalia “had the most important impact over the years on how we think and talk about the law.”
Justice Amy Coney Barrett, a former clerk of Scalia, was one such devotee, and Justices Brett Kavanaugh and Neil Gorsuch have also voiced their admiration. Originalists declare themselves to be impartial, timeless arbiters of the law, with no taste for the “spirit of the age.”
Barrett echoed this sentiment in her Supreme Court confirmation hearings, scoffing at those who claimed that her rulings derive from her politics and interests. She added that it is absurd to believe that any judge considers the political implications of their decisions. This idea is patently false, borne out of oblivion to the history of the judiciary and the originalist movement.
The powers and prerogatives of the Supreme Court as established by Marbury v. Madison—to strike down or uphold laws and interpret the Constitution through judicial review—are inherently political. The judicial branch has never been outside the purview of politics.
John Adams attempted to pack federal courts in the wake of his loss to Thomas Jefferson in 1801. In 1937, Franklin Roosevelt threatened court packing when conservatives used the Supreme Court to thwart his New Deal programs. In 2016, 26 percent of Trump voters identified Supreme Court appointments as the most important factor in their choice. This year, a majority of voters cited the Supreme Court as “very important” to their decision, spurred by Ginsburg’s passing and its implications.
“[The Court’s] power is immense, but it is power springing from opinion. They are all-powerful, so long as the people consent to obey the law; they can do nothing when they scorn it . . . [Federal judges] must know how to understand the spirit of the age, to confront those obstacles that can be overcome, and to steer out of the current when the tide threatens to carry them away.”
–Alexis de Tocqueville, Democracy in America, 1835
Justice William Brennan, a leading advocate for living constitutionalism, reiterated this ideal 150 years later. He explained that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
The most glaring contemporary counterexample to the Supreme Court’s image as a nonpartisan, unliving body came when Scalia and the other Republican appointees effectively granted the 2000 election to George W. Bush. No judicial restraint there. Though originalists promote the importance of federalism, the originalists in the Bush v. Gore majority had no issue interfering with a Florida court’s ordering of a statewide recount. They subverted the will of the people by invoking their own standards for what should be done.
As Justice John Paul Stevens wrote in dissent,“the Florida court’s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.” Overriding a state’s authority where it ought to apply flies in the face of everything originalists claim to believe. And what could have been more political than deciding a presidential election?
Twenty years later, President Trump stated that he wanted Barrett on the Supreme Court to “look at the ballots” in the upcoming election, and brazenly declared “we’re going to the US Supreme Court.” Barrett refused to commit to recusing herself from such a case. Fortunately, the election margin was too large—and the Trump legal team too incompetent—for this to happen.
When asked in 2008 about his role in Bush v. Gore, Scalia’s response was dismissive: “Get over it; it’s so old!” The irony is evident. Scalia and conservatives have never gotten over Roe v. Wade—they’ve spent forty-seven years waging an all-out war on abortion rights. They haven’t gotten over Obergefell v. Hodges—which extended the right to marry to same-sex couples—even though it’s approaching the age of Bush v. Gore at the time of Scalia’s statement. Originalists have not ruled out judicial revanchism—they’ve embraced it.
Their philosophy found its modern form amid the backlash to the political implications of decisions reached by the Warren and Burger Courts. Though the contemporary originalist may be so long removed from their predecessors that they do not remember or acknowledge what their forefathers opposed, those who stand to lose from revanchism do.
The late-twentieth-century originalists were clear in their discontent: the Court had overstepped and forced racial integration, birth control, and equal representation down the country’s throat. “Religious liberty” was under assault. The judiciary forbade school prayer and infringed upon the right of schools to exclude Black students and ban interracial dating. And should African Americans, women, and the LGBTQ community fight to retain these precedents, originalists then and now dismiss their concerns.
It’s not an activist judicial philosophy that the originalists disagree with; it’s the political implications of left-leaning decisions. Though contemporary conservatives have tried to revise history to make cases like Brown v. Board align with their philosophy. But there was no constitutional justification for striking down segregation, and those who ratified the Reconstruction amendments clearly did not believe they outlawed segregation. The courts and legislature all understood this at the time of adoption. Originalists cannot say that their philosophy condemns segregation in all cases, as federal judge Wendy Vitter let slip during her confirmation hearing.
The conservative movement has fought what it sees as liberal decisions for so long under the guise of originalism that many people are inclined to take the movement at its word, ignoring that it’s inherently reactionary. The legal Right can bluster all it wants about originalism’s merits and its hatred of “legislating from the bench,” but a mile-long trail bares its true intentions: reaching conservative rulings.
“A Republican president . . . will enable courts to begin to reverse the long line of activist decisions — including Roe, Obergefell, and the Obamacare cases.”
–2016 and 2020 Republican platforms
“Originalism” is just the latest euphemism that conservatives use to justify oppressive policies. “States’ rights” and “federalism” provided the perfect cover for opposition to the Civil Rights Movement. “Religious liberty” excused the denial of birth control, the creation of private “segregation academies” (often with public vouchers), and opposition to gay marriage. Election integrity and voter ID laws served to “solve” the nonexistent problem of voter fraud, offering a legally accepted way to suppress minority votes.
The conservative project has put lipstick on a pig for quite some time, cloaking bigotry behind a carefully crafted, supposedly intellectual appeal to conservative principles. Consider Republican strategist Lee Atwater’s description of his success in campaigning:
Originalists often hold that if their judicial activism can undo a precedent, then that precedent shouldn’t have been established through the courts at all, and that an amendment or statute is required. But applying this logic to already-decided issues would force the originalist to renounce many moral and just precedents.
The Equal Rights Amendment was not ratified by the required number of states to become law. Phyllis Schlafly and other conservative activists killed it. Is the originalist ready to assert that the equality of women should not be observed because not enough states are willing to accept it? There’s a certain irony in seeing Amy Coney Barrett say that she believes in the “original meaning” of a Constitution written by men who didn’t believe she should be afforded full citizenship rights, let alone participate in state affairs. Amy Coney Barrett has “judicial activists” to thank for her entire career.
At face value, the Thirteenth Amendment, which outlawed slavery, might seem an example of a proper fix to the Constitution’s original flaws. But framing it this way omits the bloody war that preceded the amendment and the conditions under which it was passed. The states that would have opposed the amendment were no longer part of the nation, and their forced readmission was contingent upon accepting the amendment and Reconstruction.
Of course, the originalist would rather not be reminded of this, for it shows that it is virtually impossible to amend the Constitution, and this is by design. It does not follow that a right should not exist because the legislature and states are not ready to recognize it. A right is a right. Sometimes the public must be forced to recognize this, as was the case with gay marriage,the desegregation of schools, and interracial marriage.
Originalists proclaim that it is the legislature’s prerogative to make policy. But they are more than willing to take a judicial sledgehammer to the laws they don’t like.
Conservatives were happy to oversee the gutting of the Voting Rights Act, passed by Congress in 1965 and last reauthorized in 2006. Shelby County v. Holder struck down the pivotal Section 4(b), which required states with a history of racial discrimination to get Justice Department clearance to change their election laws. Conservatives—under the guise of originalism—held that the need for its aggressive enforcement had passed. But states instantly moved to enact racist policies to disenfranchise voters. Texas implemented a new voter ID law within twenty-four hours of the decision, and voter purging increased in Republican states affected by the Shelby decision.
While criticizing the “ends justify the means” mentality of the Left, the Right is happy to use judicial activism when it suits their ends. Scalia believed that original meaning should be the lens through which judges view their cases. This action—far from being an impartial manner of reading the Constitution—allows for the sensibilities of judges to influence what documents that they choose to consult. There were very few things that the Founding Fathers agreed upon, and judges can cherry pick the writings of those whose views align with theirs.
Scalia, along with Justice Clarence Thomas, often abandoned original intent and meaning to champion causes dear to the Republican Party. The originalists on the Court had no qualms about drastically expanding the right to gun ownership, even though it’s not explicitly covered by the Second Amendment. If “arms” and “militia” meant the same in 1791 as they do now, how does one explain the District of Columbia v. Heller decision affirming that the Second Amendment guaranteed a boundless right to arms unconnected to a militia?
How can originalists such as Scalia and Thomas justify stretching the First Amendment’s Free Speech Clause to include undisclosed, unlimited campaign donations through Citizens United v. FEC? The amendment does not reference spending, and no founding-era understanding of the word “speech” would include pouring millions of dollars into government influence. Conservatives had no problem eschewing originalism to protect their corporate donors, who have pumped millions in dark money into politics, including the judiciary.
Former White House Counsel Don McGahn confirmed that the Federalist Society—a conservative and libertarian organization that advocates originalism—has influenced Trump’s judicial appointments. The Federalist Society received $16 million from an entity known as Donor Trust. According to Senator Sheldon Whitehouse, the trust is a “gigantic identity-scrubbing device for the right wing” that conceals donor identities. The Judicial Crisis Network—another conservative nonprofit aiming to influence policy and appointments—spent $17 million opposing Merrick Garland’s nomination to the Supreme Court and lobbying for Neil Gorsuch; that money also came from an unknown donor.
With funding from the right-wing donor apparatus, Republicans overturned Abood v. Detroit Board of Education, which upheld the right of unions in public workplaces to collect dues from non-union members who reap the benefits of union activity. In 2012’s Knox v. Service Employees International Union, the majority sided with unions, but Justice Samuel Alito’s harsh dissent signaled the court was sympathetic to overturning Abood.
With Harris v. Quinn in 2014, the Right won a partial victory when the Abood doctrine was limited. Smelling blood, they embarked on a plot to strike down Abood once and for all. Friedrichs v. California Teachers Association was meant to do this, but Scalia’s death in 2016 left the Court gridlocked. The 2017 seating of Gorsuch, an avowed originalist and Scalia devotee, paved the way for 2018’s Janus v. AFSCME, which granted a huge victory to the corporate interests funding the Republican judiciary effort. The same donor groups that spent $45 million on the Janus case participated in Friedrichs.
Republicans are following a similar game plan in challenging the Affordable Care Act, Roe v. Wade, and Obergefell v. Hodges. A number of states recently passed abortion restrictions, aiming to draw lawsuits, rise to the Supreme Court, and rely on Barrett and other conservatives to dismantle Roe.(Though Barrett declined to say whether she supports overturning Roe, she signed an ad calling it “infamous” and is supported by anti-abortion groups.)
In a recent challenge to Obergefell, a former Kentucky county clerk, after denying marriage licenses to same-sex couples, argued that she was exempt from discrimination lawsuits because of her religious beliefs. Thomas and Alito agreed with the Supreme Court’s denial of her appeal, but reiterated their Obergefell dissent. The message, like the one Alito sent about Abood, was clear: this particular case was not the right one to dismantle precedent, but they are waiting for the one that is.
Thomas and Alito—and others who want to overturn Obergefell or shrink its scope—do not seem to care how the decision was made. They care that it was made, and they believe it is their solemn duty to overturn it. Their professed originalism is a cover for their goal of reaching the outcomes their ideology dictates. Scalia himself once said to never “separate your religious life from your intellectual life. They’re not separate.”
Originalists’ obsession with judicial process allows them to claim that the outcomes are secondary, even as they tailor those outcomes to their ideology. When a satisfactory challenge to same-sex marriage makes its way to the Court, they will claim that they view it with complete disconnect from the issue itself.
But those who are impacted by the Court’s decisions don’t have the luxury of caring about process. It’s difficult to respect a judge for following their doctrine when that doctrine is a cover for stripping away your right to marriage or equal employment.
The judges who make these decisions are unwaveringly wealthy and disproportionately White and male, and are generally unaffected by their rulings. They can make whatever arguments they want to justify outcomes—and be treated as heroes and intellectuals by those who are pleased with the end result. In their obsession with process and original meaning, originalists conveniently (and maliciously) ignore the damage they do to marginalized communities.
Even an abiding faithfulness to the Constitution should be subject to scrutiny. Thomas Jefferson, recognizing that times would change, believed that the power of the Constitution should last only nineteen years.
The document is not timeless. It is a historical work, and like all historical works, it needs to be placed in context. It was not written by God, or divine influence, or an omniscient entity. It was written by people. And those people—however much they are deified today—were flawed. To treat their word as infallible is a disservice to them and to the principles that America claims itself to be founded on.
Originalists extol their philosophy’s consistency and apolitical application. But in addition to their pursuit of blatantly political ends in rulings, their attempts to remake the judiciary demonstrate their understanding of the judiciary as a political institution.
It is an institution favorable to conservatism. As of December 31, Trump’s 234 appointees—the second most appointed by a president—comprised a third of the Supreme Court and a quarter of the federal bench. Those appointments were confirmed by a Republican Senate that stalled President Obama’s nominations, leaving over one hundred vacancies for Trump to fill. In the final months of his presidency, Trump repeatedly looked to the courts, specifically the Supreme Court, to save him. While this may not have worked, this appeal reveals a fundamental recognition among the GOP that the courts are essential to their power.
Republicans have played scorched-earth politics with the judiciary for years. In 2016, they blocked Garland’s nomination, arguing that a president shouldn’t appoint a justice in an election year. This fabricated norm vanished four years later when Republicans confirmed Barrett a week before the presidential election.
Recontextualizing the 2016 stonewalling as a procedural matter is nonsense; that’s not what Republicans said at the time. Republicans are trying to gaslight Democrats into doubting the hypocrisy they’ve seen.
Republican equivocation reveals a focus on power, not principle. They have careened from thinly veiled excuses for their hypocrisy—slinging baseless accusations about what Democrats would do in such a situation—to forgoing all pretense and simply playing “because we can” politics.
They have attempted to guilt Democrats for considering court reform, while they do whatever they can to maintain control. In 2016, when even Republicans thought Trump would lose, some openly called for blocking appointees for Hillary Clinton’s entire term. Others contemplated shrinking the Supreme Court, theorizing that the impending departure of older justices Ginsburg, Anthony Kennedy, and Stephen Breyer would skew the Court rightward.
The politics of the confirmation process are inseparable from the politics of the rulings. Once Republicans have their judges in place, they can be confident that those judges will rule in their favor while operating under the guise of apolitical originalism. For people who regard the Constitution as sacred, conservatives display an astounding flexibility regarding rules and precedent—so long as they are in power.
In using originalism to conceal their brazen attempts to remake the country and its judiciary in their image, conservatives have proven time and time again that they should not be taken at their word. Puppet theater indeed.
