Bruen's Text and History Approach One Year Later: A Supreme Con

 By Eric Segall

There are four Supreme Court justices who self-identify as strong originalists (Thomas, Barrett, Gorsuch, and Kavanaugh), and one who is a hot and cold originalist (Alito). Inheriting their perspectives from the work of the late Justice Scalia, they all believe the correct method of originalism has much more to do with the original public meaning of the constitutional text than the subjective intentions of the drafters and ratifiers of that text (though evidence of intent is surely relevant to public meaning). 

In the landmark Bruen gun case from last year, writing for all of the conservatives, Thomas strongly emphasized the role of history in constitutional interpretation and rejected the idea that judges should “make difficult empirical judgments” about “the costs and benefits" of legislation. Although Bruen involved only the Second Amendment, the justices argued that this "all history, no policy" approach applied to other constitutional provisions as well (such as the First Amendment).

After the case came out, many scholars, including this author, argued that the Bruen approach, in reality, was inconsistent with both originalism and long-standing Supreme Court practice. Many of us also suggested that the Court would drop this approach like a hot potato if it got in the way of the justices' policy preferences. It did not take long for this prediction to come true.

Among other important cases this term, the Court ruled in favor of a wedding website designer who did not want to offer her services to same-sex couples for their weddings, effectively ended affirmative action at universities across the country, and enjoined President Biden's student loan forgiveness program. All three cases were decided by 6-3 votes along partisan lines. In the process of engaging in aggressive judicial review, the conservative justices invalidated a major federal program, told Colorado it could not fight LGBTQ discrimination in the context of places of public accommodation when expressive activity is at issue, and displaced the decisions of hundreds if not thousands of university administrators trying to diversify our nation's institutions of higher education and in the process try to make up for our sordid and racially discriminatory past.

In none of these cases did the majority opinions for the Court rely on history, and all three of them relied strongly on policy concerns. In other words, Bruen's approach lasted less than one Supreme Court term. Once again, preferences and politics, not law, were the coins of the realm at the United States Supreme Court.

Despite the conservative justices' rhetorical embrace of public meaning originalism, the reality is that constitutional litigation almost always involves the balancing of important and conflicting values. 303 Creative v. Elenis is a perfect example. The plaintiff wanted to open a wedding-website design business but advertise that she would not create sites for same-sex couples. Colorado's anti-discrimination law prohibits such behavior. The issue in the case was whether the First Amendment trumps Colorado's interests in fighting discrimination against gays and lesbians.

Justice Gorsuch wrote the opinion for the Court. All of the conservatives joined in full. The three liberals dissented.

Gorsuch's opinion is 26 pages long. There is only one paragraph devoted to the original public meaning of the First Amendment, and it contains only general platitudes about the importance of free speech--platitudes we can all agree with and take pride in. But the issue in the case was whether Colorado's important interest in fighting LGBTQ discrimination had to be subordinated to the free speech issues inherent when the government compels speech. On that issue, which was the only real issue in the case given the State's stipulations, Gorsuch and the other originalists relied on policy, policy, and more policy. Original public meaning simply was not addressed by the so-called originalists. After recounting the history of non-discrimination laws and how important they are, Gorsuch concluded the following:

The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider unattractive, misguided, or even hurtful, But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.

Throughout the opinion, Gorsuch expressed respect and sympathy for anti-discrimination laws but also said that compelled speech concerns limited how such laws can be enforced. That conclusion may be right or wrong (the three dissenters thought it plainly wrong), but in any event, the Court’s privileging of free speech rights over Colorado’s interests in protecting LGBTQ rights is a value judgment that assumes away almost all of the hard issues and arguments raised by the case (the Court didn’t even really apply strict scrutiny) and was not justified by reference to the Constitution’s original meaning (which might for example place Colorado’s sovereignty over non-discrimination tools above the justices’ judicially created doctrines of freedom of expression and compelled speech). So much for a history-only approach to constitutional interpretation. So much for Bruen.

Chief Justice Roberts wrote the opinion for the Court effectively ending the use of racial criteria in university admissions. The other five conservative justices joined in full though a few wrote separately as well. The three liberals dissented. The official, majority opinion is 40 pages long. THERE ARE TWO PARAGRAPHS DISCUSSING THE ORIGINAL PUBLIC MEANING OF THE 14TH AMENDMENT AND ONLY IN A CONCLUSORY AND SUMMARY FASHION. Nowhere in the majority opinion do the justices seriously discuss the voluminous scholarship detailing that, as an original matter, the 14th Amendment clearly allows the state to use racial criteria to help improve racial equality and diversity (as opposed to racial exclusion),.

Instead, the majority opinion is essentially a tautology: the 14th Amendment requires color-blindness absent a compelling state interest and means that are narrowly tailored to achieve that interest; neither Harvard nor UNC used means that are narrowly tailored, and thus both policies were illegal (Harvard's under federal statutory law, UNC's under the 14th Amendment and a federal statute). But Chief Justice Roberts did not even try to make an originalist argument supporting color-blindness. The opinion is policy, policy, and more policy. So much for Bruen, again.

Justice Thomas did try to support his obsessive dislike of affirmative action with an opinion devoted to history and original meaning. No other justice joined his silly, unpersuasive, ahistorical opinion. For example, Justice Kavanaugh, a self-identified originalist, did not even try to write a separate originalist opinion, instead arguing that the case was consistent with the Court's own precedents (it wasn't). But Kavanaugh joined Roberts' opinion in full without joining Thomas' opinion at all.

Thomas' separate opinion will be lost to history, which is the only fate it deserves. I won't waste your time on his dishonest and shabby reasoning other than to say, again, that no other justice joined it. If you want a wonderful summary of the inanity of Thomas' opinion, here's a piece for you.

In Biden v. Nebraska, the six conservatives, in an opinion by Chief Justice Roberts, struck down President Biden's post-Covid efforts to lessen the hardships of student debt pursuant to a provision in the law that allowed the President to do that in times of war or emergency (I would think over a million American deaths counts as an emergency). The Court ruled the plan unauthorized by federal law on grounds suggesting that when Congress legislates with regard to "major questions," it must do so with more specificity than it did in the student loan legislation. 

The opinion is 26 pages long and does not make any argument about the original meaning of the relevant parts of the Constitution to buttress its heightened standard for delegations involving major questions. The opinion suggests throughout that it is bad policy to transfer such broad powers to the executive at least absent quite specific instructions. But of course, the other side of that argument is that Congress cannot handle the details of major new problems, that delegations of substantial power to the executive go all the way back to the Founding, and that in this very case Congress was trying to decide what to do in emergencies and, of course, such things cannot be predicted in advance. Roberts had responses to those arguments but NONE OF THEM HAD ANYTHING TO DO WITH THE CONSTITUTION'S ORIGINAL MEANING.

Justice Barrett’s concurrence suggested that the major questions doctrine is a statutory interpretation tool, not a constitutional limit but, even assuming that’s true, an interpretative tool that powerful is inconsistent with most of our history since 1936 and also inconsistent with broad delegations of power at the Founding. In any event, Barrett made a policy decision to employ a heavy-handed interpretive tool that history simply does not support

In the 2021-22 term, in Bruen and Dobbs, the conservative justices fell all over themselves to stress the importance of original public meaning to constitutional interpretation. In the 2022-23 term, the Court issued major opinions on the balance between freedom of speech and non-discrimination laws, the legality of universities using racial criteria in admissions, and an enormously important issue affecting millions of student loan borrowers and the proper relationship between Congress and the President. In none of those opinions, was originalism even a small part of the Court's analysis. The only conclusion that can possibly be drawn is that, even for the conservatives on the Court, originalism is just one big con.