On Monday (July 9), US president Donald Trump will announce his pick to replace Anthony Kennedy on the nation’s highest court. The candidate for junior justice will no doubt be someone who claims to be an “originalist” or a “textualist,” which are just two ways of saying a judge guided by the US Constitution.
Big decision will soon be made on our next Justice of the Supreme Court!
— Donald J. Trump (@realDonaldTrump) July 7, 2018
The rhetoric about originalism can be a little confusing. Isn’t every judge in the country supposed to use the text of the constitution to inform decisions, after all? And if so, why do the president, conservatives, and prospective Supreme Court picks themselves talk about this judicial philosophy as if it’s somehow unique, rather than standard practice?
Leonard Leo, Trump’s de facto judicial advisor in his role as the executive vice president of the Federalist Society, told Fox News on July 1 that “there’s been a movement on the court towards being more originalist and textualist” and that this is the trend that Trump wants to continue. He defines the philosophy as “the idea that law means something, it has determinate meaning.”
The buzzword originalism means different things to different people, however. As the conservative Heritage Foundation—which has been instrumental in forming Trump’s Supreme Court picks list—explains, originalism isn’t uniformly understood or an approach reserved for conservative judges alone. It also doesn’t yield universal results because it is a way to interpret the law, but the intention of the constitution’s framers isn’t always apparent in light of new facts that postmodern cases present. The organization explains:
Discerning the Founders’ original understanding is not a simple task. There are the problems of the availability of evidence; the reliability of the data; the relative weight of authority to be given to different events, personalities, and organizations of the era; the relevance of subsequent history; and the conceptual apparatus needed to interpret the data. Originalists differ among themselves on all these points and sometimes come to widely divergent conclusions. Nevertheless, the values underlying originalism do mean that the quest, as best as we can accomplish it, is a moral imperative.
That quest is not reserved for conservatives alone, however. Avowed liberal justice Ruth Bader Ginsburg has proclaimed herself an originalist, for example. She defines the term as someone who looks to US history (paywall) to discern the intentions of the framers of the constitution.
In the strictest sense, originalists see the constitution as a dead, static document, as opposed to the liberal notion of living constitutionalism. But phrasing it that way—as “dead”—might make originalism a lot less appealing to Americans, argues University of Chicago law professor Justin Driver.
If the constitution is “alive,” it offers principles to inform an ever-changing society. Textualists contend that the constitution cannot to be understood anew with each generation and its shifting mores, however, that it represents a set of fundamental rules. They put themselves in the shoes of a framer in 1779, at the time the document was ratified, and try to imagine what a Founding Father like Thomas Jefferson would have to say about a sex offender’s use of Facebook, for example (apparently, he would have considered social media the new “public square” based on a unanimous 2017 decision in Packingham v. North Carolina, an opinion written by Kennedy).
Still, it’s not really clear that the founders wanted justices in 2018 to see with 18th century vision. They weren’t specific because their intent was for the document to be flexible enough to guide a country through many generations, Driver argues. As the current chief justice, John Roberts, said during his Senate confirmation hearings in 2005, “When [the Framers] adopt broad terms and broad principles, we should hold them to their word… and that means when they have adopted principles like liberty, that doesn’t get a crabbed or narrow construction.”
Deceased justice Antonin Scalia might be called the original originalist and is credited with making this historical approach to legal interpretation a popular subject of discussion among conservative politicians and liberal lawyers alike. Still, even Scalia was wishy-washy. “Scalia’s version of originalism led him to write 135 liberal opinions,” writes attorney and author of the 2017 book The Unexpected Scalia, David Dorsen, in the Washington Post (paywall). He notes that Scalia’s successor, Neil Gorsuch, isn’t a reliable originalist, either, and sometimes seems more driven by moral arguments than by the law.
That may be because—as University of Chicago law professor Eric Posner believes, originalism is just a political “code word”—and means little to anyone. “Legislators don’t care about originalism. Regulators don’t care about originalism. Not even the lower courts care about originalism… Presidents are concerned above all with an appointee who will not interfere with their political agenda,” he contends.
Posner points out that “a sincere originalist is not as politically dependable as someone with strong conservative political values.” A textualist is devoted to the text, the ideas espoused in the constitution above all else. A political party’s perspectives are secondary to a true originalist perspective.
Likewise, author and University of Washington political science lecturer Scott Lemieux pointed out in the New Republic in 2016, “originalism doesn’t meaningfully drive judicial decision-making even when judges nominally use it.”
In other words, it’s a ruse. Politicians use the word to signal that their judicial pick is not an “activist judge” that won’t make law but stick to the rules laid down by the founders. But on the bench, justices have always looked to history to inform interpretations, whether or not they called themselves textualists.
Lemieux, like Dorsen and Posner, argues that references to originalism are often just cover for personal positions. “Before and after Scalia, justices will use history when they believe it supports their ex ante conclusions and ignore it when they believe it doesn’t,” he writes. That’s because judges are merely human and they make individual judgments—whatever they may claim about judicial philosophy.
Also, there’s lots of room for interpretation within originalism. The original meaning of the constitution is a mystery at times. As Seventh Circuit Court of Appeals judge Amy Coney Barrett—a top contender for the vacancy on the high-court bench now—notes in a 2017 Notre Dame Law Review article, “For an originalist, the meaning of the text is fixed so long as it is discoverable.”
When it’s not, justices fill in the blanks. That is their job, after all. Trump’s hope is that his pick will interpret the law as he wishes. But if he really does choose a true originalist, and not just a politician in justice’s robes, he might find himself disappointed.