Joel Alicea on Divisions among Originalist Justices
Michael Ramsey

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?

The originalist justices have shown themselves to be divided on these and other questions of constitutional theory. To many critics of the Supreme Court, its majority appears monolithic, but that perception is mistaken. Indeed, the defining challenge for the court’s conservatives today is how to maintain a majority to move the law in an originalist direction despite the many theoretical disagreements among them.