The Emperor's New Clothes Originalism
Law Professor Caleb Nelson made a big splash this week by arguing that under the text and original meaning of the Constitution, Congress has the power to place limits on the President's ability to fire most executive officers. If he is right, the Roberts Court's many cases to the contrary are incorrect as an originalist matter. Additionally, most people expect the Court to reverse the landmark case known as Humphrey's Executor later this term. That decision allowed the Congress to insulate the commissioners of the Federal Trade Commission from termination by the President absent cause. If Professor Nelson is right (and he is), that reversal will also be a mistake as an originalist matter.
What makes all of this so newsworthy according to The New York Times, The New Republic, and many other outlets is that Professor Nelson is a former Justice Thomas law clerk and a self-identifying originalist whose work is often cited by the conservative justices in their opinions. Here is how Adam Liptak of the New York Times put it in an article with the title: "'Originalist ‘Bombshell’ Complicates Case on Trump’s Power to Fire Officials."
The Supreme Court will hear arguments in December about whether President Trump can fire government officials for any reason, or no reason, despite laws meant to shield them from politics. There is little question that the court will side with the president. Its conservative majority has repeatedly signaled that it plans to adopt the “unitary executive theory,” which says the original understanding of the Constitution demands letting the president remove executive branch officials as he sees fit.
But a new article, from a leading originalist law professor, has complicated and perhaps upended the conventional wisdom. The legal academy treated the development like breaking news. “Bombshell!” William Baude, a law professor at the University of Chicago who himself is a prominent originalist, wrote on social media. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.
Later in the article, after going through Nelson's persuasive arguments as to why the "unitary executive" theory the Roberts Court has embraced for over a decade is anti-originalist, Liptak quotes Nelson as saying, “In the face of such ambiguities, I hope that the justices will not act as if their hands are tied.” Nelson was referring to the many anti-originalist precedents in which the Court embraced the "unitary executive" theory.
The absurd premise at the heart of all this nonsense is that we have justices who truly believe in originalism. The title of the New Republic article is: "Has the Supreme Court Abandoned Originalism?" No, because you can't abandon something you never had.
In 2018, the New York Times printed my op-ed on the anti-originalist nature of our allegedly originalist Court that the paper unfortunately titled: "Does Originalism Matter Anymore?" That wasn't my title, of course, because the op-ed makes clear that Justices Thomas, Kavanaugh, and Gorsuch did not vote originalist and neither did anyone else on the Court.
On this blog, in law review articles, and in my book Originalism as Faith, I have documented how the so-called originalist justices have a long, consistent record of voting in ways that text and history do not support. Other folks like Erwin Chemerinsky have also devoted books to this incredibly obvious proposition. The following is a partial list of the ways in which self-identifying originalist justices have voted for doctrines that cannot be justified by originalism. I am consciously not using hyper-links to the many sources for these propositions because too many academics have reached these same conclusions to do justice to any one source. In this long forthcoming article, I detail the evidence.
1) Color-blindness has no basis in the text or history of the 14th Amendment.
2) Strong post-speech protections for speech have no basis in the First Amendment's original meaning (Oh, and by the way, money is not speech, and neither are union dues).
3) The doctrine of equal-state sovereignty that the Court used to destroy the Voting Rights Act's preclearence requirements has no basis in text or history.
4) Presidential immunity from prosecution for crimes committed in office after a president leaves office has no basis in text or history (even though the Constitution does give members of Congress some immunity).
5) As Nelson argues persuasively, there is nothing in the Constitution's text or its history suggesting Congress can't limit the President's ability to fire federal officers.
6) The Court's rule that Congress cannot commandeer state officers is anti-historical and is not in the Constitution's text.
7) Neither the text nor history of the Free Exercise Clause suggests that states cannot help private secular schools unless states also help religious private schools.
8) Everything about the Second Amendment from the Roberts Court is nonsense.
Nonetheless, the eight rules described above have been adopted by the current "originalist" justices on the Supreme Court and represent the Roberts Court's most important constitutional law decisions (other than Dobbs). These rules may be good, bad, or in-between. They may be justified by precedent or not. But they are not originalist.
The Originalist Court has no originalist clothes. Can we please stop pretending?
-- Eric Segall