The Myth of the Originalist Judge

 By Eric Segall

When the Senate begins its confirmation hearings for Judge Amy Coney Barrett today, she will no doubt identify herself as an originalist when it comes to constitutional interpretation. Her mentor, Justice Scalia, was famous for preaching originalism as the best method for deciding constitutional law cases, as have current Supreme Court Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. But all these justices as well as Judge Barrett are selling snake oil because there is no such thing as an originalist judge. What these judges are actually doing is hiding their personal value judgments behind a false veneer of history. There are conservative judges, liberal judges, and moderate judges, but there are no originalist judges.

Justices Scalia and Thomas struck down over a hundred laws over their careers without any sound originalist basis. Here are representative examples: They both voted to strike down every affirmative action law they faced based on a principle of color-blindness that is not in the Constitution and unsupportable as a matter of the 14th Amendment’s original meaning. They both voted to strike down campaign finance law after campaign finance law even though the First Amendment’s original meaning does not support such overreaching. They both claim the Second Amendment’s original meaning includes a private right to own guns despite the assessments of most historians that the Amendment had nothing to do with self-defense in the home or hunting. And they both voted to strike down the key section of the Voting Rights Act based on a principle that Congress has to have a strong reason for treating different states differently that is not in the Constitution’s text and completely inconsistent with the history of the Reconstruction Amendments. I could go on and on listing such cases, which have in common conservative results, not persuasive conclusions about the Constitution’s original meaning.

How about Justices Gorsuch and Kavanaugh? In their short times as Justices, they both voted to strike down state laws that treated religious schools differently than secular schools based on a principle that hamstrings the ability of states to avoid separation of church and state concerns and which is in no way justified by the first amendment’s original meaning. They also both voted to strike down 23 state laws requiring nonunion public sector workers to pay union fees if they were covered by collective bargaining agreements negotiated by the union; a Minnesota law that prohibited the wearing of political apparel in voting places; and a California law that required “pregnancy crisis centers” to post information regarding state abortion services. None of those cases can be justified by reference to the Constitution’s original meaning, and the various authors of those opinions did not even seriously try to do so.

Judge Barrett has only a few years behind her on the bench but she already voted (in dissent) to strike down an Illinois law barring non-violent felons from owning guns—a holding which has no sound basis in the Second Amendment’s original meaning. “Judges are not policy makers,” she assured us when introduced by President Trump, except for when they are, which is regularly. Here she wanted to overturn a perfectly legitimate, important, and potentially life-saving Illinois statute on the basis of selective and cherry-picked historical sources to justify a conclusion almost certainly reached before her analysis of history began.

We can all agree that where the Constitution is clear, such as the requirement that the President be thirty-five or that each state must be represented by two senators, judges must follow the text. But most constitutional cases do not involve these kinds of provisions. Instead, constitutional litigation requires judges to interpret broad and imprecise aspirations like freedom of speech, equal protection of the laws, due process of law, and the bars on unreasonable searches and seizures and cruel and unusual punishments. Neither these vague texts nor the history behind them can provide answers to most litigated cases. 

For example, originalism cannot tell us whether politicians may block people on their social media websites, as President Trump wants to do; whether lethal injections currently used by many states to kill convicted murderers are cruel and unusual punishments; or whether racial preferences used by public universities that used to be all white violate the equal protection clause. There is nothing in 1789, when the Constitution was ratified, nor 1868, when the Fourteenth Amendment was adopted, that can help with any of those questions, or similar ones that are litigated on a regular basis, because so much has changed in our country and most originalists now admit that judges are allowed to take into account those changes when deciding how to apply imprecise text to new questions. That concession, which provides judges enormous discretion to decide which changed facts matter and which do not, dooms originalism as a serious method of constitutional interpretation both in theory and in practice.

Self-proclaimed originalists such as Judge Barrett know that in 1868 women had no constitutional right to vote, were essentially the property of their husbands--and gays, lesbians, and, of course, transgender folk, were completely invisible to the law. Any modern cases involving alleged discrimination against those groups cannot be aided by looking at the original public meaning of the Fourteenth Amendment as it was understood in 1868. To suggest otherwise is complete foolishness. Too much has changed, for the better of course, when it comes to these groups, and these changes were not anticipated by the people who wrote and ratified our Constitution, the Bill of Rights, or the Reconstruction Amendments.

Judge Barrett also knows that the firepower of guns today has little in common with what such “arms” could do at the Founding. Laws that restrict the sale of assault weapons or that require special permits to carry such weapons or that prohibit felons from owning guns simply cannot be addressed through historical investigation but only by balancing the government’s interests in public safety against the Second Amendment rights asserted by the plaintiffs. But that balancing can only be done by looking at modern guns and our country today, not the world of the Founding, and that is why originalism is impossible in such a case despite what Judge Barret might say.

As I have written elsewhere, judges and politicians use the label “originalist” to identify as conservatives, libertarians, or both, and to hide the personal value judgments that inevitably lie behind their constitutional law votes. Judge Barrett will be (already has been) no exception. Although I agree with Mike that the Senators should not address her directly for all the reasons he gave in his fine post on the subject, the Senators should call out all the GOP nominees who have self-identified as originalists, noting that judges don't decide cases according to history but their personal politics and values, because on the ground where it matters, there are no originalist judges.