Originalist Judicial Activism

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By Eric Segall

Now that President Trump has named Brett Kavanaugh as his nominee to replace retiring Justice Anthony Kennedy, we can expect the confirmation process charade to proceed apace. Judge Kavanaugh will dodge most if not all the hard questions put to him by members of the Senate Judiciary Committee, the Democratic members will complain loudly, and then the nominee will be confirmed by a party line or almost party line vote.
One word we can expect to hear a lot during this process is “originalism.” More on that below. One phrase we likely will not hear uttered by folks on either side of the aisle is “judicial activism.” That is truly unfortunate.
The pejorative description “judicial activism” has had a checkered past. Arthur Schlesinger first coined it in a 1947 Fortune magazine article, but he did not define it. In the 1970’s and early 1980’s, conservative judges, public officials, and pundits used the term to criticize liberal Warren and early Burger Court decisions such as Roe v. Wade and Miranda v. Arizona. President Ronald Reagan, Judge Robert Bork, Attorney General Ed Meese, and many other self-identifying originalists used “judicial activism” to describe decisions they alleged were based on the Justices’ modern values, not the Constitution’s original intent. Many liberals responded that “judicial activism” was just code for progressive decisions that conservatives didn’t like.
As judges appointed by Reagan and George H.W. Bush started to dominate the federal judiciary in the 1990’s, however, and started to exercise aggressive judicial review for conservative ends, those on the right changed their tune. Suddenly, now that they had control, they agreed with liberal scholars and pundits that judicial activism was an empty phrase denoting nothing more than the person employing it disagreed with the decision at issue. Partly because of this political back and forth, few scholars now use the phrase. We should bring it back.
People can reasonably differ over how to apply open-ended constitutional provisions (such as the first and fourteenth amendments) to current conditions, but we should all agree that judges should honestly explain the decisions they reach. Therefore, a reasonable definition of “judicial activism” is a decision by a judge who claims to follow a consistent judicial philosophy but then strikes down (or upholds) a law in a manner inconsistent with that philosophy, absent reasonable explanation. Such a decision is “activist” in the sense that, because of the judge’s deviation from his previously explained legal norms, there is strong reason to suspect the result was reached for personal or political reasons apart from law.
During the last two weeks, there have been the inevitable statements by Republican politicians and pundits, including Leonard Leo, the President’s chief advisor on judicial nominations, emphasizing how important originalism is to constitutional interpretation. Even President Trump, according to Leo, said that he wants his nominee to “interpret the Constitution the way the framers meant it to be.” No doubt Judge Kavanaugh will repeat that commitment in the upcoming months.
There are two Justices now on the Court who purport to be originalists, Justices Clarence Thomas and Neil Gorsuch. Thomas has been repeating the originalism mantra for nearly thirty years. Gorsuch repeatedly testified to his alleged originalist bona fides during his confirmation hearing in March 2017. 
Thomas, however, has a long record of voting in a non-originalist manner. He has voted to strike down state and federal affirmative action laws, campaign finance reform, and laws directing the states to help implement federal programs, without ever justifying those votes on the basis of original meaning. Those are just a few of many other examples. Now, Gorsuch has joined Thomas in this non-originalist spree of overturning laws they simply don’t like.
Last year, Thomas and Gorsuch voted to strike down a nineteenth century Missouri state constitutional provision prohibiting public money from going to religious organizations. Their concurring opinion did not rest on any ratification era (either 1787 or 1868) evidence. No doubt if they could have they would have presented  originalist sources, but the reality is that the original meaning of the free exercise clause would clearly have allowed this statute to stand. 
Both Justices would have you believe that judges doing exactly what they did, striking down a law or a state constitutional provision despite its clear validity under an originalist approach to constitutional interpretation, is an irresponsible breach of judicial duty. Yet, they did exactly that without explaining their departure from what they claim is their normal judicial methodology. This inconsistency is a classic example of judicial activism.
This term the Justices did much more of the same. Thomas and Gorsuch voted to strike down four state laws on free speech grounds. These laws included a Colorado non-discrimination law as applied to a baker who refused to bake a cake for a same-sex wedding (the majority took a much narrower one-case-only approach). They also invalidated 23 state laws requiring public sector employees to pay union fees if they were covered by collective bargaining agreements whether or not they joined the union; a Minnesota law prohibiting political apparel in voting places; and a California law requiring so called “crisis pregnancy centers” to provide  truthful state-furnished information regarding abortion. Whether they wrote their own opinions or joined the opinions of other conservative Justices, no originalist evidence was presented suggesting any of these laws should be struck down.
This is not to say there aren’t reasonable non-originalist arguments to support striking down each of these laws, but sincere originalist judges should have ruled for the states in each case.
For Justices Thomas and Gorsuch who claim to disavow non-textual, non-originalist considerations, these cases should have been easy victories for the states. But they chose their political conservatism over their stated methods of constitutional interpretation in each case as they also did in last term’s important religion case.
Justices Thomas and Gorsuch deserve the label conservative judicial activists. And legal scholars (as well as Senate Democrats) should not be afraid to use that term.