The Divisions Among the Court's Originalists

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.

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