How the Roberts Court Killed Originalism

Last week I sent out a lengthy article to the law reviews arguing that the Roberts Court, the most self-identifying "originalist" Supreme Court in American history, has in fact, and ironically, killed originalism. This blog post is a summary of the arguments I present in that piece.

A majority of Roberts Court justices self-identify as either strong or moderate originalists at the same time as conservative legal scholars and pundits are praising the Robert’s Court’s adoption of originalism as the proper method to resolve our country’s most important cases. However, for almost twenty years, the Roberts Court has consistently changed constitutional law in non-originalist, anti-historical directions to be more consistent with the GOP’s modern agenda than the values of the Founding Fathers. In other words, in the hands of the Roberts Court, originalism amounts to nothing more than virtue signaling and camouflage.

This disconnect between how the justices say they are deciding constitutional cases and how they are really doing so has resulted in a dangerous lack of transparency from the nation’s highest court. Rather than assume responsibility for the decisions they make, the so-called originalist justices pretend that they are discovering historical facts and longstanding traditions when they are actually creating new law to further their current judicial and political philosophies.

Although originalism comes in a variety of flavors, most self-identifying originalists agree that the meaning of constitutional text is fixed upon ratification and binding upon future judges. For sincere originalists, unlike for some living constitutionalists, modern concerns and evolving societal values cannot override the Constitution’s discoverable original meaning.

Using that definition (or any other), the Roberts Court is killing originalism case by case. The examples could fill a treatise, but the most salient and important ones are discussed below.

The First Amendment’s original meaning regarding the freedom of speech is surprisingly easy to reconstruct. Judicially enforceable speech protections at the time of ratification did not extend beyond the unconstitutionality of prior restraints and licensing schemes. Although the founding fathers objected to censoring speech before it was spoken or written, they had little issue with after-the-fact punishments for speech.

This historical narrative is supported by the inconsistency between the Alien & Sedition Acts passed by Congress in 1798, which punished speech critical of the government, and the Court’s current rule that laws punishing speech because of its content are unconstitutional absent the most compelling governmental interests.

And yet, the Roberts Court has aggressively struck down state and federal laws on First Amendment grounds with little originalist analysis (which if employed would have led to different results in most cases). For example, the Roberts Court overturned a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, and civil liability for the highly offensive speech of folks who protested near a funeral of a member of the armed forces. The Roberts Court has also used the First Amendment to overturn laws relating to commercial advertising and, most infamously, campaign reform efforts to lessen the impact of money in elections.

None of these cases can be justified through originalism, and the justices did not even try to do so. For example, no one at the time of the First Amendment’s ratification believed donating money to a political campaign was protected “speech.”

Supreme Court reporter Adam Liptak has observed that the “conservative agenda…has increasingly been built on the foundation of free speech.” Yet, sincere originalists must reject the Roberts Court’s free speech cases unless someone finds historical evidence that so far has eluded the most prominent judges, legal scholars, and historians.

The First Amendment also protects the “free exercise of religion.” The Roberts Court held in three cases that, if a state decides to financially assist secular private schools, it must also assist religious schools. In these cases, the justices struck down important state policies balancing the educational needs of the states’ children with the states’ legitimate church-state-separation concerns that taxpayer dollars should not be used to support religion--concerns the conservative justices summarily dismissed.

This aggressive federal judicial intervention into how states fund public and private schools cannot be justified by the original meaning of the Free Exercise Clause, and in none of the cases did the conservative justices even try to make the effort.

The Second Amendment fares even worse. Historians uniformly agree that the Second Amendment was originally meant to allow states to maintain fully armed militias in case the new federal government became tyrannical. The amendment had nothing to do with personal self-defense or hunting.

This militia-centered reading of a text whose first words are, “A well-regulated militia,” was the law of the land from 1791 until 2008, when the Court decided for the first time that the Second Amendment protects gun ownership separate from militia service. This individual-gun-rights-protective interpretation of the Constitution may or may not be good policy and may or may not be consistent with other Supreme Court decisions broadly protecting individual rights, but it simply cannot be persuasively justified by an originalist approach to constitutional interpretation.

And then there is “color-blindness.” In SFFA v. Harvard, the Roberts Court overruled fifty years of caselaw and held that the Fourteenth Amendment’s Equal Protection clause requires university admissions be “color-blind.”

That phrase is nowhere in the Constitution, and this country has never been colorblind. Moreover, as many legal scholars have observed, the original public meaning of the Fourteenth Amendment cannot stand for color-blindness because government programs enacted at the time included racial criteria.

It is therefore not surprising that the majority opinion in SFFA is devoid of any originalist justification and reads like a living constitutionalist homage to broad policy concerns. The only justice who even attempted to support color-blindness with originalist sources was Justice Thomas, and his opinion was so inadequate that no other justice joined it.

In addition to speech, religion, affirmative action, and gun control, the Roberts Court’s separation of powers decisions are also a result of the justices’ contemporary ideological preferences. The so-called major question doctrine, for example, which severely limits the ways Congress may delegate critical decisions to the Executive, reflects the justices’ anti-regulatory libertarian agenda, not a sincere attempt to reconstruct the Constitution’s original meaning (or to interpret the statutes Congress has enacted).

Constitutional law today, after more than a half-century of GOP control of the Court, reflects the values of the 2025 Republican Party, not the Constitution’s original meaning. Whether or not that vision of America is good, bad, or something in-between, our country would be better off if the justices admitted that their decisions are based on their own value judgments, not decisions made by people who lived centuries ago in a completely differently world. The rule of law should require nothing less.