At Dorf on Law, David S. Cohen and Eric Segall: Will Neil Gorsuch Be the Court’s First Originalist?
From the introduction:
When claiming that Gorsuch is an originalist, most people liken him to Justice Scalia or Justice Thomas, two Justices who are also widely regarded as originalists. However, if Gorsuch is confirmed and consistently practices originalism on the bench, he will in fact become the Court’s first originalist Justice.
Discussing previous justices’ views on originalism:
[D]espite many Justices extolling originalism’s virtues, no Justice has ever consistently applied the theory. Part of the reason is that the search for original meaning is often fruitless. It is difficult, and sometimes impossible, to ascertain what people who lived hundreds of years ago thought about issues they could not foresee, such as Presidential drone strikes on American citizens abroad.
But more importantly, even originalism’s most ardent supporters jettison the theory when it doesn’t suit their purposes. One obvious example is affirmative action. There is no credible originalist case for the Supreme Court to find that the Constitution prohibits states from adopting affirmative action plans. In the 1860s, when the Fourteenth Amendment’s Equal Protection Clause was adopted, Congress took several measures that explicitly helped former slaves, and those measures were based on race. A real originalist would recognize that the original understanding of the Fourteenth Amendment was consistent with affirmative action and uphold the practice. However, Justices Scalia and Thomas have always been silent on the issue of originalism when affirmative action was before them and consistently voted against it. They argue the Constitution is color-blind, a principle that is deeply embedded within their conservativism but is nowhere mentioned in the Constitution, nor supported by its history.
Originalists have it even worse when it comes to affirmative action programs adopted by the federal government. For technical reasons, those programs are challenged not under the Fourteenth Amendment but rather under the Fifth Amendment, which was adopted in 1791. It is beyond argument that the original meaning of the Fifth Amendment has absolutely nothing to do with race equality, and for a very obvious reason: this country was almost as far from color-blind as possible in 1791. After all, slavery was the norm in a large swath of the country. Since there was no principle against race discrimination in 1791, a true originalist would have to rule that the federal government was allowed to act based on race; however, Justices Scalia and Thomas have unflinchingly struck down these programs as well.
Why have they ignored originalism here? Because, like every other Justice who has served on the Supreme Court, they use a mix of methods to decide cases, including thinking about what outcome they want. Being ideologically conservative, Justices Scalia and Thomas often support conservative outcomes, even when doing so is inconsistent with originalism.
On Gorsuch’s originalism:
Thus, during the coming week’s confirmation hearings, if Gorsuch claims, as we all expect him to do, that he is an originalist, Senators should question him closely. Is he an originalist when it comes to affirmative action? Or, taking another issue that is conservative orthodoxy but hard to square with originalism, about whether corporations are people under the First Amendment?
The upcoming hearings are the best chance for the American people to know more about Gorsuch and his proclaimed judicial philosophy. Is he going to, like his predecessors, use originalism only when it suits him, but ignore it when the results are contrary to his personal views or completely at odds with modern society? Or will he use originalism in every case, including approving affirmative action and denying women an equal role in society?
Posted at 6:10 AM