10 hours ago
The Supreme Court Is Divided in More Ways Than You'd Think
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.
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.
Originalism in its modern form emerged in the 1970s. The Supreme Court had issued an array of controversial decisions including Miranda v. Arizona in 1966 (requiring an arrestee to be informed of certain rights before being interrogated) and Roe v. Wade in 1973 (holding that there is a right to abortion). To some in the legal academy — and to many in the public — nothing in the text or history of the Constitution seemed to justify these rulings. The court's decisions struck them as arbitrary at best. At worst, in the words of Justice Byron White, who served on both the Warren and Burger courts, they appeared to be an 'exercise of raw judicial power.'
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