Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
The Center for the Study of Constitutional Originalism at the University of San Diego has been holding an annual conference on originalism for the last 11 years. Each year at the beginning of the conference, I discuss what I regard as the most important events concerning originalism in the past year. This year, for the first time in many years, the most significant event has not involved a Supreme Court vacancy or appointment, such as Justice Scalia’s passing, Justice Gorsuch’s nomination and appointment, or Justice Kavanaugh’s appointment.
In fact, if any appointments in the past year have been significant events for originalism, it has been the large number of circuit court judges that President Trump has appointed. Among the nearly one-third of all circuit judges that Trump has appointed during his presidency, many of them are originalists.
As for the Supreme Court, with two or three strong originalists on the Court, one might have expected that it would have decided a significant originalist case—another DC v. Heller, if you will. But that has not happened. In Gamble v. United States, the Court did consider whether the original meaning of the Double Jeopardy Clause allows for the dual sovereignty doctrine, but only one of the originalist justices believed the original-meaning evidence sufficiently supported eliminating that doctrine.
The closest case to such an originalist blockbuster was Gundy v. United States, where Justice Gorsuch’s dissent (joined by two other justices) made an originalist case for a strong nondelegation doctrine. But Gorsuch’s decision was only a dissent, even though five members of the court have either signed on to the opinion or expressed sympathy with it.
Thus, Gundy was not an originalist triumph, but instead a possible sign of originalist decisions to come. To my mind, the most significant originalist developments in the past year fall into this category: indications of a vigorous originalist future.
In addition to Gundy and the new circuit court judges, I want to mention three significant developments that suggest a potent originalist future.
First, there is the emergence of Justice Gorsuch as a strong voice of libertarian originalism. Over the past few years, Justice Gorsuch has written dissenting and concurring opinions that see the original meaning as providing stronger protections for individual rights and stronger limits on government than the other members of the Court generally acknowledge.
Examples include his view that the Fourth Amendment applies to cell phone location data, that patent rights cannot be revoked without an Article III court’s review, that the Double Jeopardy Clause does not have a dual sovereignty exception, and that the Due Process Clause places limits on vague civil and criminal laws. Justice Gorsuch has defended his views in a recent book entitled A Republic, If You Can Keep It.
In saying that Gorsuch is a libertarian originalist, I don’t mean to suggest that he reads his political views into the Constitution. Instead, I mean that he understands the Constitution’s original meaning to provide strong protection for individual rights and significant restrictions on government.
Second, a significant debate has emerged between the two most committed originalists on the Court—Justices Thomas and Gorsuch. While Justices Thomas and Scalia occasionally disagreed about the original meaning, the debates between Thomas and Gorsuch seem far more frequent.
When Gorusch was first appointed to the Court, he and Justice Thomas voted identically for quite a while. It almost seemed inappropriate. But not anymore. In case after case—in Carpenter v. United States, in Gamble, in Sessions v. Dimaya, in Oil States Energy Services v. Greene’s Energy Group—Gorsuch has taken an individual-rights view while Justice Thomas has taken the government view.
While this disagreement might seem like a problem for originalism, I don’t believe it is. Although disagreements about the original meaning have some costs, they also have benefits. Disagreeing in an open judicial debate about the original meaning, paradoxically, lends credibility to originalism.
It suggests that originalists will not paper over their disagreements for a false unity, but instead will follow the originalist evidence wherever it leads them. It also suggests that originalists recognize that the evidence can sometimes be conflicting, but that they should still follow what they see to be the stronger view of the original meaning. In the long run, such disagreements lead to a stronger originalism, as weaker arguments eventually lose out to stronger ones and the justices publicly affirm their commitment to originalism.
The third development is the ongoing attempt to rethink the relationship between originalism and precedent. If one defined precedent broadly and followed it consistently, there might be little room for originalism in constitutional law. It is thus understandable that, in the Supreme Court and in the circuit courts, originalists have been thinking about how to develop a significant place for originalism within the sea of nonoriginalist precedents. They are doing this by finding ways to limit the scope of nonoriginalist precedents.
At the Supreme Court, Justices Thomas and Gorsuch stated in Garza v. Idaho: if there is “little available evidence suggest[ing] that” certain precedents are “correct as an original matter, the Court should tread carefully before extending our precedents in this area.”
This approach is even being employed at the circuit court level, where circuit court judges have begun to use then-Judge Kavanaugh’s language from his DC Circuit Free Enterprise dissent. There, Kavanaugh argued that circuit courts “should resolve questions about the scope of [Supreme Court] precedents in light of and in the direction of the constitutional text and constitutional history.” Similar approaches have occurred in several cases, including the opinion by Fifth Circuit Judge Don Willet in a case about the removability of the Administrator of the Federal Housing Finance Agency.
Most recently, the approach was adopted by newly-appointed Ninth Circuit Judge Patrick Bumatay. Judge Bumatay dissented from the denial of a rehearing en banc in part on the grounds that the scope of nonoriginalist Supreme Court precedent concerning the Eighth Amendment should be considered in light of the original meaning.
The large number of originalist circuit court judges makes this rethinking of the scope of precedent even more significant. Finding a place for originalism in the lower courts may allow circuit judges to identify originalist cases, permitting those cases to be teed up for the originalists on the Supreme Court.
Finally, I should not leave this subject without mentioning the use of originalism during the Trump impeachment. As with the impeachment of President Clinton two decades ago, both sides of the Trump impeachment used originalist arguments. But while the originalist arguments during the Clinton impeachment might have been the most important originalist event at that time, I don’t think those used during the Trump impeachment are the most important originalist event today. Other originalist developments are more important, a sign that originalism has become a much bigger part of our legal world.