An Originalism Scorecard Since Justice Barrett Arrived on the Court: Living Constitutionalism is Way Ahead

Justice Amy Coney Barrett was confirmed to be a Supreme Court justice in late October, 2020 (just before Donald Trump lost the election). Since her arrival, four justices now self-identify as full-blown originalists (Thomas, Gorsuch, Kavanaugh, and Barrett) while Justice Alito is an on and off again originalist, and even Justice Jackson at times has shown great interest in originalist sources.

Yet the most important cases of the last three terms have been almost totally devoid of originalist analysis. The reason for that omission is that none of the alleged originalists on the Court uses that method of constitutional interpretation unless it supports their views. In other words, they are conservatives and Republicans first, originalists only when convenient, which is to say that none of them are originalists at all. I have little doubt that at some future date the failure of these four justices to actually use originalism and even decide some cases against the most persuasive historical sources, will be compelling evidence for originalism's demise. Given the age of those four faux originalists, however, and life tenure, I may not live long enough to see that moment, but I am quite confident it will happen.

These days originalism comes in a wide variety of flavors. But for purposes of this essay, we can assume that all originalists agree that, to be an originalist, one must search for the Constitution's original meaning, or the intentions of those who wrote and ratified the Constitution, or both, using historical sources shedding light on the time period surrounding ratification. A judicial opinion with virtually no historical analysis or that relies on history far removed from ratification simply cannot be originalist, unless it also relies on prior originalist opinions, which none of the cases discussed in this blog post try to do.

This post is concerned with constitutional law decisions, not statutory interpretation cases. I can't canvass all the Court's constitutional opinions in one blog post, but I will discuss most of the major cases from the last three terms, which provide more than a representative sample showing how little originalism actually drives the Roberts Court.

2020-2021: This term was by far the least eventful of the last three for constitutional litigation, but it still included several important cases. In Cedar Point Nursery v. Hassid, the issue was whether a California law requiring employers to allow union organizers on their properties amounted to a taking under the fifth amendment requiring just compensation. Everyone agrees that when the government takes real property away from the owner for a public use, just compensation is due the former owner. But the issue of regulatory takings involving partial restrictions on a property's use is far more complicated and such actions likely were not even recognized by the Founders as takings. Chief Justice Roberts wrote the opinion, which all four-and-a half originalists joined. There is nothing in the opinion about the original meaning of the takings clause. Nothing. Yet, the conservatives issued a major constitutional law decision likely to throw the law of takings into a bit of chaos. And they did so even though many have argued that the Court's embrace of regulatory takings might be "originalism's Achilles' heel."

In Collins v. Yellen, the Court held that as a matter of constitutional law the President must have the right to fire the Director of the Federal Housing Finance Agency unconditionally despite a federal law  requiring "cause" for dismissal. Other than a single reference to a general statement by James Madison, Justice Alito's opinion has no originalist analysis, and neither did Justice Thomas's or Justices Gorsuch's concurring opinions. Collins is a continuation of aggressive, formalist opinions by the Roberts Court on separation of powers issues, striking down numerous agency arrangements with barely a nod to originalist sources.

In United States v. Arthrex, another separation of powers case, the Court held that certain administrative law judges had to be subject to termination by the Secretary of Commerce, contrary to a federal statute. There is no originalism in the majority opinion except for passing references to quite general statements made by Hamilton and Madison. Justice Thomas did dissent partly on originalist grounds.

In Fulton v City of Philadelphia, the Court held that Philadelphia violated the free exercise clause of the first amendment when it prohibited a Catholic organization from participating in a city-funded foster care program because it discriminated against gay and lesbian parents. The majority opinion has absolutely no originalist analysis, although admittedly the concurring opinions by Justices Alito and Barrett contained some originalist references.

In Mahanoy Area School District v. B.L., a public high school student transmitted to her Snapchat friends vulgar language and gestures criticizing the school and its cheerleading team after she did not make the varsity squad. The student’s speech took place outside of school away from the campus. In response, the school suspended the student for a year from the cheerleading team. The Court held this suspension violated the first amendment with neither the majority nor concurring opinions engaging with originalist sources at all. In dissent by himself, Justice Thomas did make originalist arguments but Justices Gorsuch, Kavanaugh, Barrett, and Alito did not join him.

2021-2022:

In Dobbs v. Jackson Women's Health Organization, as everyone knows, the Court overruled two landmark cases and returned the issue of abortion to the political process. Justice Alito's opinion for the Court canvassed much history but did not try to ascertain the original meaning of the Due Process Clause. As Professor Cass Sunstein has written:

The Court devotes essentially no attention to the original public meaning of the Due Process Clause, or to the original understanding of its framers and ratifiers. It is possible that due process traditionalism would emerge from the relevant history, or perhaps that privileges or immunities traditionalism would so emerge; but the Court does not defend that conclusion. In this light, the endorsement of due process traditionalism is best seen as a form of common law constitutionalism, with a large dose of Burkeanism and Thayerism.

In short, the majority opinion in Dobbs is a lot of things, but it is emphatically not an originalist interpretation of the 14th Amendment. And neither Justice Thomas's nor Justice Kavanaugh's concurrences had any originalist analysis either.

In Federal Election Commission v. Cruz, the Court continued on its rampage through campaign finance reform efforts without any discussion of originalist materials. The conservative justices struck down limitations on the repayment of a candidate's loans to his own campaign committee, saying the law unduly burdened speech. 

In Carson v. Makin, the Court held that a state law prohibiting students from participating in an otherwise generally available student-aid program if they attend schools that provide religious or “sectarian” instruction violates the free exercise clause of the first amendment. There is no reliance on originalist evidence in the opinion. The Court relied on two other similar recent cases, neither of which relied on historical sources. These three cases, taken together, are nothing less than a revolution in free exercise clause jurisprudence, tying the hands of the states when it comes to regulating private schools-- all done with no originalist support.

In Kennedy v. Bremerton, the conservative justices held that a school district violated the first amendment by penalizing a coach who prayed at midfield after football games. The majority opinion by Justice Gorsuch, which relied on both the free speech and free exercise clauses of the first amendment, has no originalist analysis and neither do Justice Thomas's or Justice Alito's short concurring opinions.

In New York State Pistol & Rifle Association v. Bruen, the Court canvassed history from centuries before the Second Amendment was ratified all the way through the late 19th century to strike down New York's discretionary licensing scheme for people seeking to carry guns in a concealed manner. But this canvassing of history is quite different from an examination of the original meaning of the Second Amendment. Instead, Bruen is what Harvard Law Professor Noah Feldman calls historicism. According to Feldman, Bruen is "not genuine originalism. Drawing analogies between historical materials produced over hundreds of years and a contemporary case does not limit or constrain judges."  Professors Joseph Blocher and Eric Reuben have also observed that the Bruen methodology "departs from standard public meaning originalism."

History will record the 2021-2022 Supreme Court term as extremely important given the overturning of Roe and the strengthening of individual gun rights and the free exercise clause. What the term will not be remembered for is originalism.

2022-2023: 

In 303 Creative LLC v. Elenis, the Court held that the first amendment prevents Colorado from punishing a wedding website designer who said she planned to exclude same-sex weddings from her business. The tension between non-discrimination laws and freedom of expression is quite difficult under the Court's myriad free speech doctrines. But whatever the right balance happens to be, the conservative justices did not rely on originalism to rule against the state. Other than a few fleeting and unhelpful references, the opinion has no originalist analysis.

In Haaland v. Brackeen, the Court upheld the Indian Child Welfare Act and I admit several of the justices did use originalist materials to resolve a number of the issues. Brackeen is the exception that proves the rule because the various opinions read very differently than the other cases on this list. 

In Moore v. Harper, the Court rejected the strong version of the independent state legislature doctrine that would have precluded state courts from exercising judicial review over election issues. Although Chief Justice Roberts used originalist sources to establish that the framers anticipated judicial review, the actual analysis in the case relies mostly on the Court's own precedents and policy concerns.

In Students for Fair Admissions v. Harvard and a companion case by the same plaintiff against the University of North Carolina, the Court held that the fourteenth amendment prohibits the use of race in university admissions (and that Title VI bars that same use in private schools which accept federal money). Chief Justice Roberts's majority opinion canvasses a bit of history but does not apply an originalist analysis because nowhere does he wrestle with the large volume of scholarship arguing strongly that the Fourteenth Amendment's original meaning allows the government to use racial classifications if their purpose is to move us further away from systemic racism. Justice Thomas's concurring opinion did try to do that, but he did it so poorly and so unpersuasively that no other justice joined his analysis.

Since Justice Barrett joined the Court, the conservative justices have dramatically reshaped the law of abortion, affirmative action, gun control, the relationship between church and state, free speech, and the separation of powers. They accomplished many of the Republican Party's objectives in a very short time. And they did almost all of it without serious originalist analysis. These three terms contain just as much, if not more, living constitutionalism than probably any other three-year period in the Court's history. 

In short, living constitutionalism is still the Court's dominant mode of legal analysis, and it is not even close.

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Author's Note: This is my last blog post of 2023. Happy holidays to one and all and thanks again to Mike and Neil for sharing this space with me so often over the years.