The Divisions Among the Court's Originalists

Professor Joel Alicea on how to understand what may be the most important jurisprudential divisions on the Supreme Court.

Professor Joel Alicea has a thoughtful and perceptive op-ed in the New York Times, "The Supreme Court Is Divided in More Ways Than You'd Think," discussing the issues that divide the Supreme Court's five originalist justices. It begins:

When Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court during President Trump's first term, originalism found itself in an unfamiliar and challenging position.

All three of the court's new members were avowed originalists, holding that judges ought to interpret the Constitution according to the meaning it had when it was ratified. As a result, a majority of the justices, including Clarence Thomas and Samuel Alito, now subscribed to this theory. Originalism, long seen as an insurgent force at the Supreme Court, had become its reigning philosophy.

For the originalists on the court, the shift from backbenchers to decision makers brought new responsibilities and presented new difficulties. Problems that had mostly been hypothetical debates within the court's originalist minority became central questions of constitutional law. How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute?

As Professor Alicea notes, the five originalist justices often disagree on a range of issues that can affect how cases are decided and how quickly the Court's doctrine changes, including the extent to which the Court should respect non-originalist precedent and whether originalism, on the margin, should be more focused on constraining judicial discretion or on fulfilling the original meaning of the Constitution.

These differences matter because in a fair number of high-profile cases, such disagreements may control case outcomes and the contours of case holdings. Writes Alicea:

For originalists such as myself, these fractious dynamics pose the greatest threat to the urgent effort to restore the rule of law that was so badly damaged by the Supreme Court in the 1960s and '70s under Chief Justices Earl Warren and Warren Burger. But for all observers of the court, regardless of judicial or political inclination, these disputes are key to understanding its decisions.

He concludes:

This Supreme Court, contrary to accusations that it is lawless and political, is more committed to a particular constitutional theory than any Supreme Court has been since at least the 1940s. Understanding the deep theoretical roots of the conservative justices' agreements and their disagreements is crucial to appreciating what has happened since Mr. Trump transformed the court during his first term — and what may happen in the years to come.

Comments

[bye]

I like Professor Joel Alicea and I’ve heard him speak several times. I don’t think he understands a couple things

1) So NOW he’s getting on the Natural Law bandwagon but this has long been the view of many scholars going back to Corwin. It isn’t the congruence of Natural Law to Originalism ,it’s that Natural Law is behind all our organic laws.

2) In his “Constitutional Theory and the Problem of Disagreement” he mentions Cicero. Does he not know that Cicero is in his Catholic Catechsm saying that disagreement should not exist for many first principles, or natural law.

Everything seems to fall to a lack of FIRST PRINCIPLES, the inviolable self-evident truths, which if you have become morally depraved you might not see or , better, you will say that was the morals of the Founders but not of today. In what sense is it morals if you are making them up. The sexual pervert is going to say “I like what I am doing and that justifies it”

[JasonT20]

The sexual pervert is going to say “I like what I am doing and that justifies it”

The meaning of “sexual perversion” is understood, in its formal use, in reference what is considered normal and acceptable by society. In colloquial use, a “pervert” can mean anything from someone that has “dirty thoughts”, to someone that seeks a willing adult partner to indulge in an unusual kink, and finally to a sexual predator that targets prepubescent children. The former two types of “pervert” would fall under the “none of your goddamned business” category, the latter is among the worst crimes we can imagine short of murder. (With some people feeling that it deserves the same punishment as murder. I don’t share that point of view, but I won’t call it unreasonable, either.)

So, what first principles do you think govern sexual behavior in the frame of Natural Law?

[Supremacy Claus]

Add this article to the list of supernatural lawyer doctrines. The lawyer is reading the minds of dead people. Add it to mind reading of drunken criminals, foreseeing rare accidents, and a model of proper conduct that is fictitious, but a thinly disguised avatar of Jesus, in violation of the Establishment Clause.

[JasonT20]

How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute?

I’d add two questions that should be answered before those are even considered:

How can originalist judges be sure that they correctly understand what the original meaning of the text was? (The obvious follow up being, what should they do when they aren’t sure.)

How can originalist judges be sure that they aren’t being selective in their analysis so as to reach a preferred solution?

For originalists, perhaps those questions have been long settled. In which case, if he was speaking to an audience of originalists, then maybe Professor Alicea didn’t feel the need to pose those questions along with the others.

But I am neither a lawyer, nor do I follow or subscribe to originalism as an amateur. I have only followed this blog for several years, reading the posts, comments, and making comments of my own. I am no closer to understanding how originalists answer those two questions than when I first heard of originalism.

The second question is a general one about how judges curb their own biases. I ask it in a discussion about originalism because of how often originalists insist that originalism is a neutral method of interpretation (some even seem to think that it is the only neutral method of interpretation).

It strains credulity to argue that originalism is neutral in its methods and results when originalism only seems to be used in judicial opinions when it leads to results that line up with the political leanings of the judges (or at least the party of the President that appointed them). It is a very rare exception that I see any judge or justice appealing to originalism in an opinion that cuts against their perceived partisan preferences. I can only think of a couple of opinions from Gorsuch off the top of my head, and I could be thinking of ones that were based on textualism and not originalism.

The first question is actually more important and specific to originalism, though. I’m not sure, but I’d feel fairly confident that few lawyers learn more of history than they need to in order to study law effectively. I really doubt that they learn the methods of studying history very often. I don’t see many judges that had extensive academic, scholarly experience prior to becoming a judge, so that really makes it seem unlikely that more than small handful of judges studied history extensively enough to be justifiably confident that they would get original meaning correct a high percentage of the time.

I’ll leave it to Stephen Lathrop to go into excruciating detail on that point, but I fully agree with him in the principle of what he says on that.

[JasonT20]

Oh, and really, these have always been so obvious to me, that I even forgot these questions that should be answered about originalism even before those others that I asked:

To what extent, if any, was the Constitution understood at the time by those that ratified it to demand that their understanding would always be how the text should be interpreted?

If there was any such understanding, to what extent was it shared among those that voted to ratify it?

To what extent would the opinions and understanding of those that opposed ratification matter in originalist interpretations?

[Stephen Lathrop]

To those excellent questions I would add: what historical evidence can be found that when various states ratified the Constitution and Bill of Rights, they did not understand some specific provisions in ways at odds with each other? Were reasons for ratification sometimes so various that no modern legal synthesis can be called a valid summary of what happened?

For instance, what if Virginia and Pennsylvania understood the 2A oppositely with regard to the question of a right to personal self-defense with a gun? What can a would-be originalist make of that? If historical sources disclose agreement apparent on a militia right, but mutually opposing reasons for ratification with regard to self-defense, what is the legitimate originalist interpretation which results?

I insist that such a case—decided on strictly originalist principles—would conclude the militia right is protected nationally by the federal Constitution. But self-defense rights are protected by state constitutions, according to particular state contexts at the time of their ratifications.

From that beginning the complications would proceed to multiply. Which is one of the reasons I think originalism—touted as a means to deliver legal constraint—is unlikely to prove a durable tool for legal interpretation.

[wvattorney13]

You should watch the Youtube videos where Scalia and Breyer debate each other. His answer in defense of originalism is that it does not easily answer every single problem. That is a strawman.

What it does is that it easily solves most of the controversial problems that we have. The death penalty, for example, is clearly permitted.

And when you have the hard cases, at least TRYING to discern the original intent is preferable to putting your finger to the wind and coming up with your own value judgment about what the Constitution simply must mean in 2025. That’s not judicial, that’s legislative.