Supreme Court nominee Neil Gorsuch and the rise of originalism

If Neil Gorsuch is to become the next US Supreme Court justice, Senate Democrats say, he will have to prove to them that he is in the judicial “mainstream.”

What Judge Gorsuch’s confirmation hearings could highlight is how the traditionally conservative philosophy of originalism has become so mainstream and, arguably, bipartisan.

Originalism calls for the Constitution to be interpreted as the Framers intended it to be more than 200 years ago. Since a staunch commitment to originalism helped scupper a Supreme Court confirmation three decades ago, the philosophy has become increasingly popular. This growing popularity is due in large part, experts say, to originalism diversifying and moderating itself, moving from an exclusively conservative philosophy to one that now has support across the ideological spectrum.

When Ronald Reagan nominated the late Justice Antonin Scalia to the high court in 1986 “originalism was a much less influential and followed opinion,” says Michael Rappaport, a professor at the University of San Diego School of Law.

“Today somebody could say it’s one of the two leading approaches to interpreting the Constitution,” he adds.

The fundamentals of the originalist judicial philosophy have existed for as long as the independent judiciary itself. But the modern originalist movement emerged about 30 years ago in response to what conservative legal scholars perceived as “activism” from the Warren court, regarding landmark decisions such as Brown v. Board of Education or Roe v. Wade.

While proponents like Scalia rose to the high court, originalism remained a fringe philosophy for some time. President Reagan nominated Robert Bork to the court in 1987, for example, but a bipartisan coalition in the Senate defeated his nomination in large part because of his staunchly originalist views, particularly regarding rights to individual liberties and privacy not explicitly protected by the Constitution.

“Over time, originalism has grown more sophisticated and in some ways different from what it was 30 years ago in just opposing Warren decisions,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

'We are all originalists'

Fast-forward to Justice Elena Kagan’s confirmation hearings in 2010 and the change becomes particularly stark. “We are all originalists,” she said then, albeit making clear that in some cases the Constitution is open to broad interpretation.

Perhaps no decision better encapsulates this evolution than District of Columbia v. Heller, the 2008 Supreme Court affirming an individual’s right to carry a gun. In that 5-to-4 decision, both the majority and the principal dissent built their opinions on an originalist interpretation of the Second Amendment.

But that is not originalism coming to dominate the judicial mainstream, experts say. Instead it is a product of originalism becoming one of several methodologies now in the judicial mainstream that judges and justices use to form opinions.

“Originalism has become very mainstream, and as it’s become mainstream I guess you could say it’s become watered down,” says Ernest Young, a professor at the Duke University School of Law.

“People like [Bork and Scalia] have really succeeded in persuading everyone from the right to the left that we ought to do more historical research in constitutional interpretation than maybe we did under the Warren court,” he adds. “Everyone is pretty much persuaded that history counts, [but] very few people think that only history matters.”

'Living Constitution'

The main philosophy competing with originalism is commonly known as “living constitutionalism,” the philosophy that the Constitution is dynamic and can evolve and be reinterpreted as society changes. This philosophy tends to give more weight to Supreme Court precedents and changes in social and cultural norms, and is generally more popular among progressive jurists.

But even staunchly conservative originalists don’t automatically side with Republican administrations. When George W. Bush pushed to expand the scope of executive power amid the war on terror, for example, Scalia pushed back.

For many observers, the beauty and popularity of originalism is in its intuitive simplicity. If a certain right isn’t enumerated in one of the founding legal texts, an originalist would argue, then you shouldn’t write an opinion saying it’s a right – no matter how nonsensical it may appear in the modern social context. If laws need to be updated or adapted, that should be the job of Congress. 

In a way it takes power out of the jurist’s hands and places it in the texts, and that is another appeal of the philosophy, particularly in an era when judges and justices are often derided as unelected “activists” for authoring opinions unfavorable to the opposing ideology.

“The concern is that judges need to be able to point to some source of authority for what they’re doing that’s outside their own views and precedents,” says Professor Young. “They need to be able to say, ‘The Constitution made me do it.’ ”

But some argue that, in many instances, originalism is only facially neutral. David Strauss, a professor at the University of Chicago School of Law described originalism as “a form of rhetoric, rather than a coherent analytical approach,” in an email to the Monitor.

“Originalists are able to find ways to reconcile their supposed originalism with mainstream views, at least whenever they want to,” he added.

Indeed, because originalism is so grounded in history, critics argue that it is easy for jurists to cherry-pick historical details to fit their desired conclusions.

Same Amendment, different interpretation

Take Heller. In that decision, both sides were parsing the text of the Second Amendment. Scalia, writing for the majority, said it “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes.” In his dissent, Stevens wrote that the text doesn’t specify an individual right to own a gun, only a collective right as part of a “well-regulated militia.”

The Heller ruling “illustrates how, on the one hand everyone has accepted that originalism is one way to interpret the Constitution,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago. “On the other hand, it also illustrates what the limits of originalism are – when judges and justices can come up with entirely different conclusions based on an originalist analysis.”

A decade as a federal appeals court judge in Colorado will not have tested Gorsuch’s originalist bona fides anywhere close to what the Supreme Court would, since often only the toughest, most unsettled cases reach the high court. So it is unclear what kind of originalist he would be.

What is clear is that originalism has come a long way since the failed Bork nomination—an event that many argue triggered the cycle of presidents selling nominees, of reliable ideology, as apolitical legal technicians. And while some would argue that originalism isn’t as neutral as proponents claim, few would dispute that it has brought an extra layer of legal rigor to the judicial mainstream.

“People on the left who might have once been skeptical of broad appeals to history, are now more accepting of it – they just don’t think it’s whole ball game. But people on right don’t think that’s true either,” says Young. “That’s kind of what’s happened, people have hashed things out, they’ve moved toward each other.”