Opinion | Conservatives, Don’t Give Up on Your Principles or the Supreme Court

For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, are outdated.

After the Bostock v. Clayton County decision, which held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act — Senator Josh Hawley, Republican of Missouri, said, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision — an outcome that fundamentally changes the scope and meaning and application of statutory law — then textualism and originalism and all of those phrases don’t mean much at all.”

And some conservatives have turned against originalism altogether. Adrian Vermeule of Harvard Law School, to take one especially notable example, has called for conservatives to abandon originalism in favor of a “common good constitutionalism,” where judges and other officials would forthrightly import moral principles into the Constitution.

But today, originalism is the closest thing we have to a publicly shared set of legal principles. And it is not time to abandon it.

When the court looks to fundamental principles, it looks to the text and history of the Constitution. For instance, in an important immigration case, Thuraissigiam v. Barr, the court upheld Congress’s power to cut off habeas review for attempted entrants to the United States. In doing so, the court relied extensively on the original meaning of the Constitution’s guarantee of habeas corpus, pointing to English precedents and passages from the founding-era authority William Blackstone, among others, to argue that the writ of habeas corpus was never meant to guarantee an immigrant’s entry into the country.

Originalism also drove an even more important case about the scope of executive power, Seila Law v. CFPB, a 5-to-4 decision written by Chief Justice Roberts. The court held that the head of the Consumer Financial Protection Bureau must be removable at will by the president, who is vested with the country’s “executive power.” Text and history were woven throughout the court’s decision.

To be sure, these readings of the Constitution’s text and history are sometimes contested. There were dissents in both of these cases, and Justice Elena Kagan’s dissent in Seila Law was especially thorough in trying to marshal its own reading of the Constitution’s original meaning.

Justice Kagan’s dissent is notable because it shows how historical arguments are not used exclusively by conservatives. Justice Kagan pointed to debates at the founding about the scope of executive power and subsequent practices during the 19th century to argue that the Constitution had let Congress decide how to structure such agencies. She was quite right that this is a very close question, even if other scholars (including me) think that the majority was more likely correct. Justice Kagan relied on similar history in Chiafalo v. Washington, holding that states have the power to control presidential electors.

Moreover, these disputes sometimes split the court’s conservatives. In Bostock, Justice Gorsuch held that sexual orientation discrimination is covered by Title VII of the Civil Rights Act. He claimed to be interpreting the original meaning of the statute enacted in 1964 — “on the basis of sex” — even though most people would not have anticipated the result. But the dissenters —Justices Alito, Thomas and Kavanaugh — countered with their own originalist arguments, and many other originalists have found Justice Gorsuch’s arguments to be a stretch.

Bostock revealed debates among the originalists — for instance, how to balance a conflict between the apparently plain meaning of the text and the expectations of the people who wrote it. Justice Gorsuch stressed that because “ours is a society of written laws,” the court was ultimately bound by the text. Justice Alito’s dissent, by contrast, called the majority opinion “a pirate ship,” sailing under the false flag of textualism, when in fact it was replacing the text with modern values.

In fact neither account was quite right. What made Justice Gorsuch’s opinion most persuasive was not its textualist analysis but its use of precedents interpreting the Civil Rights Act, which the dissent’s logic would have had to repudiate.

A similar debate emerged from another important Justice Gorsuch opinion, McGirt v. Oklahoma. In McGirt, Justice Gorsuch held that 19th-century treaties with the Creek Nation remained enforceable today — divesting the state of jurisdiction over Native Americans in substantial parts of Oklahoma — despite many decades of federal and state hostility to the tribe and disregard of its rights. The court acknowledged that the federal government may have wished the tribe’s reservation to disappear, but held that “wishes don’t make for laws,” and so again the court was bound to enforce the 19th-century promises until Congress acted more formally. By contrast, Chief Justice Roberts’s dissent regarded this account as “fantasy,” arguing that Congress had acted even if it had failed to use magic words.

All of these features were present in the court’s decisions in Trump v. Vance and Trump v. Mazars, regulating subpoenas for the president’s financial records. In both cases the court did advert to founding-era history, including the practice of George Washington and Thomas Jefferson, for the broad outlines of the separation of powers. But it then went on to color in this history with more recent practice and its own balancing of separation-of-powers concerns. In doing so it again split some of the conservative justices among themselves.

Finally, in cases especially important to social conservatives, the court’s decisions showed that the importance of precedent may sometimes rival that of originalism. Two of the court’s rulings in favor of religious liberty, Espinoza v. Montana Department of Revenue and Our Lady of Guadalupe School v. Morrissey-Berru, relied on founding-era principles, but filtered those principles through the court’s own precedents. And precedent played a decisive role in June Medical Services v. Gee, an abortion case where Chief Justice Roberts surprised most observers by invalidating an abortion regulation. The Chief Justice explained that his vote was driven by precedent, because the court (over his dissent) had recently invalidated an identical law.

These decisions show that while originalism had great force at the court, it is not a juggernaut. The justices disagree about how to interpret ambiguous provisions and about the role of precedent; originalists disagree among themselves about how to balance text and other context.

These disputes are healthy. Even if the court does not get every decision right (which it does not), it demonstrates a widespread commitment to the method of originalism, in which the meaning of the Constitution as enacted by the people is paramount and judges can interpret it but cannot alter it. Originalism is foundational to our law, even though the justices sometimes disagree in applying it and even though the role of precedent remains fraught.

Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.

But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.

Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.

William Baude (@WilliamBaude) is a professor of law at the University of Chicago Law School.

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