During the Bill Clinton years, the term “originalism” was primarily used in connection with two far-right U.S. Supreme Court justices: Clarence Thomas and the late Antonin Scalia. Others on the High Court, from the late liberal Clinton appointee Justice Ruth Bader Ginsburg to Justice Sandra Day O’Connor to Justice Anthony Kennedy — a right-wing libertarian and Ronald Reagan appointee who was fiscally conservative yet protective of gay rights and abortion rights — rejected originalism, which is often synonymous with far-right social conservatism.
The Clinton years are long gone. O’Connor (now 92) and Kennedy retired, Ginsburg died in 2020, and the originalist thinking now dominates the High Court — where Republican-appointed justices have a 6-3 supermajority. One-third of the Court now consists of justices appointed by former President Donald Trump: Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all of whom joined Thomas and Justice Samuel Alito in overturning Roe v. Wade.
Author/legal expert David H. Gans, who serves as director of the Human Rights, Civil Rights, & Citizenship program at the Constitutional Accountability Center, examines the originalist doctrine as practiced by 2022’s Supreme Court in a biting think piece published by The Atlantic on July 20 — and lays out some reasons why it has been a total disaster.
“When Justice Amy Coney Barrett joined the Supreme Court in 2020,” Gans explains, “conservatives celebrated that ‘there are now four avowed originalists on the Court.’ To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were —even as they got all the results they wanted. Although conservative originalists have, for years, been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered: a hollow edifice designed to hide an ugly and aggressive ideological agenda.”
The problem with originalism as practiced by Thomas, Barrett, Alito and other Republican-appointed justices, Gans argues, is that they “cherry-pick” the parts of U.S. history that they like and gloss over the parts that they don’t.
“This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter,” Gans observes. “This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.”
Gans tears apart the High Court’s ruling Dobbs v. Jackson Women’s Health Organization and its decision to overturn Roe v. Wade after 49 years. Alito argued that Roe was inconsistent with U.S. “history and tradition,” and Gans explains why his use of that concept is badly flawed.
According to Gans, “Alito’s account of ‘history and tradition’ ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights…. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family…. In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.”
Gans writes that while Dobbs “deployed selective history to take away a fundamental right,” the 2022 Court’s 6-3 ruling in New York State Rifle & Pistol Association v. Bruen “deployed selective history to create one: a radically expansive right to be armed in public.” And Gans notes that “in this term’s religion cases, Carson v. Makin and Kennedy v. Bremerton School District, the 6-3 conservative majority dramatically expanded the protections of the free-exercise clause, without a whiff of attention to history and tradition, while whittling down the Establishment Clause in light of historical practice.”
When it comes to “history and tradition,” Gans stresses, the U.S. Supreme Court’s “originalists” are willing to ignore parts of U.S. history that don’t fit their narrative.
“As these examples illustrate, ‘history and tradition’ is the new calling card of a Supreme Court that is willing to upend our constitutional order in the name of traditionalism,” the author/legal expert laments. “Do not label the Roberts Court ‘originalist,’ if that term is to have the methodological meaning its supporters have been advertising for years. It is not. It is a deeply unprincipled conservative Court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres.”