Monday, March 20, 2017

Will Neil Gorsuch Be the Court’s First Originalist?

by David S. Cohen & Eric Segall

When Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, he praised him as someone who will interpret the Constitution “as written.” Commentators from both sides of the aisle have described him as an “originalist” who will, in Gorsuch’s own words, rely on “text, structure, and history” to interpret the Constitution rather than his “own moral convictions.”
When claiming that Gorsuch is an originalist, most people liken him to Justice Scalia or Justice Thomas, two Justices who are also widely regarded as originalists. However, if Gorsuch is confirmed and consistently practices originalism on the bench, he will in fact become the Court’s first originalist Justice.

Originalism is a theory of interpretation whereby judges identify and then rely on the original meaning of the Constitution to resolve constitutional cases. In other words, in order to interpret the Constitution’s text, an originalist looks at what the language of the text was understood to mean at the time it was adopted.

Recently originalism has become most prominently associated with Justice Scalia. Scalia spent much of his last years on the bench touring the country telling audiences that the Constitution, far from being a living document, is “Dead, Dead, Dead.” Stated less pithily, the Constitution’s meaning is fixed at the time it was adopted and does not change with the times.

To Justices like Scalia and Thomas, originalism has two values. First, it respects democracy because it gives weight to what the people who voted for a constitutional provision understood it to mean. Second, originalism prevents judges from imposing their own views on the law by fixing the law’s meaning separate from the judge’s.

However, despite many Justices extolling originalism’s virtues, no Justice has ever consistently applied the theory. Part of the reason is that the search for original meaning is often fruitless. It is difficult, and sometimes impossible, to ascertain what people who lived hundreds of years ago thought about issues they could not foresee, such as Presidential drone strikes on American citizens abroad.

But more importantly, even originalism’s most ardent supporters jettison the theory when it doesn’t suit their purposes. One obvious example is affirmative action. There is no credible originalist case for the Supreme Court to find that the Constitution prohibits states from adopting affirmative action plans. In the 1860s, when the Fourteenth Amendment’s Equal Protection Clause was adopted, Congress took several measures that explicitly helped former slaves, and those measures were based on race. A real originalist would recognize that the original understanding of the Fourteenth Amendment was consistent with affirmative action and uphold the practice. However, Justices Scalia and Thomas have always been silent on the issue of originalism when affirmative action was before them and consistently voted against it. They argue the Constitution is color-blind, a principle that is deeply embedded within their conservativism but is nowhere mentioned in the Constitution, nor supported by its history.

Originalists have it even worse when it comes to affirmative action programs adopted by the federal government. For technical reasons, those programs are challenged not under the Fourteenth Amendment but rather under the Fifth Amendment, which was adopted in 1791. It is beyond argument that the original meaning of the Fifth Amendment has absolutely nothing to do with race equality, and for a very obvious reason: this country was almost as far from color-blind as possible in 1791. After all, slavery was the norm in a large swath of the country. Since there was no principle against race discrimination in 1791, a true originalist would have to rule that the federal government was allowed to act based on race; however, Justices Scalia and Thomas have unflinchingly struck down these programs as well.

Why have they ignored originalism here? Because, like every other Justice who has served on the Supreme Court, they use a mix of methods to decide cases, including thinking about what outcome they want. Being ideologically conservative, Justices Scalia and Thomas often support conservative outcomes, even when doing so is inconsistent with originalism.

Thus, during the coming week’s confirmation hearings, if Gorsuch claims, as we all expect him to do, that he is an originalist, Senators should question him closely. Is he an originalist when it comes to affirmative action?  Or, taking another issue that is conservative orthodoxy but hard to square with originalism, about whether corporations are people under the First Amendment?

They should also question him about issues where originalism would put him embarrassingly out of step with modern times. Such as whether states can exclude women from juries, ban contraception, or stop black and white people from marrying. Or, separately, whether the District of Columbia can have segregated schools. An originalist has to say yes to all of these because there is no evidence anyone who voted for the relevant constitutional provisions would have understood them to mean otherwise.

To be sure, many scholars who call themselves originalists will answer no to some of these questions, because they define original meaning at such a high level of generality as to make originalism indistinguishable from living constitutionalism. But in doing so these newfangled versions of originalism sacrifice the two ostensible virtues of originalism: democratic legitimacy and judicial constraint. Senators should not permit Judge Gorsuch to evade their questions by redefining originalism this way.

The upcoming hearings are the best chance for the American people to know more about Gorsuch and his proclaimed judicial philosophy. Is he going to, like his predecessors, use originalism only when it suits him, but ignore it when the results are contrary to his personal views or completely at odds with modern society? Or will he use originalism in every case, including approving affirmative action and denying women an equal role in society?

If he chooses the latter and consistently stands by originalist principles, he would indeed be the Court’s first originalist.