The arbitrariness of Cass Sunstein's approach to constitutional interpretation weakens his critique of originalism.
The Year in Originalism
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 12 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. Last year, on this page, I noted that for the first time in many years, the most significant event had 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.
This past year, however, the importance of Supreme Court appointments returned with a vengeance. The most important event for originalism was the appointment of Amy Coney Barrett to Justice Ginsburg’s seat. This event is important not merely because it replaces a progressive with a conservative, but because it replaces a strong non-originalist with a strong originalist, which significantly moves the Court towards originalism.
Justice Barrett appears likely to be a strong originalist—one whose commitment to originalism is of primary importance to her voting and reasoning. One bit of evidence for her originalist bona fides—as well as something of importance in its own right—is that, more than any other Justice in the modern era, Barrett was clearly associated with originalism prior to her appointment. Some nominees had some minor association (such as Justice Gorsuch), others not much at all (such as Justice Kavanaugh). But Barrett had a long paper trail forthrightly indicating she was an originalist.
As a result of this appointment, there are now four avowed originalists on the Court —Thomas, Gorsuch, Kavanaugh, and Barrett. That means there are now more originalists on the Court than there are progressive non-originalists. Let’s repeat that: more originalists than progressive non-originalists! That is simply amazing. When I graduated from law school back in the 1980s, not a single originalist sat on the Court. Some might regard this situation as heaven and some might regard it as hell, but when considered from the perspective of the 1980s, it hardly seems like the real world.
Originalists are now the largest voting group on the Court. The largest voting group, whatever it is, is likely to have an outsized effect. The influence of this group becomes even stronger since it will often be joined with fellow travelers like Justice Alito, and perhaps Chief Justice Roberts.
The Barrett appointment is also important because it is likely to take power away from Chief Justice Roberts. While Roberts is a marvelous craftsman and can sometimes write originalist opinions, he does not in the main seem to be an originalist. Before Barrett was appointed, for a brief period Roberts had tremendous power as both the Chief Justice and the median justice. But no longer. With Barrett on the Court, Justice Kavanaugh, an originalist, is likely to become the median justice.
Yet, I say this with caution because Justice Kavanaugh’s originalism is by no means proven. Before his confirmation hearings, Kavanaugh did not describe himself as an originalist. And while he calls himself an originalist now, he votes most often with Chief Justice Roberts, and second most often with Justice Alito—neither of whom I would describe as an originalist. If Kavanaugh is more like Roberts and less of an originalist than advertised, that changes things. Then there are three groups—three progressive non-originalists, three originalists, and another group of largely conservative non-originalists. It wouldn’t be terrible for originalists, but they would be less influential.
In addition to Barrett’s appointment, the past year has seen some very important cases decided. I want to draw attention to three of them because they show how originalism sometimes functions differently than we expect or hope.
First, there was the Chiafalo or “faithless electors” case—a case that I regard as a disaster for originalism. In my view, in that case Professor Larry Lessig provided the original meaning to the Court on a silver platter—that the states could not control how the presidential electors voted. But in an opinion written by Justice Kagan and joined by seven Justices, that purported to follow an originalist analysis, the Court held that the states could control the electors. Significantly, in my view, not a single justice got the original meaning right —not even Justice Gorsuch in his concurrence. Chiafalo shows that avowing originalism does not guarantee quality originalist adjudication.
Second, another originalist mistake occurred in Bostock v. Clayton County, which held that Title VII’s prohibition on sex discrimination covered sexual orientation and transgender status discrimination. Here the Court claims to be seeking “the ordinary public meaning of [the statute’s] terms at the time of its enactment.” But rather than pursuing a genuine originalism, the Court followed either a form of literalism or nonoriginalist legal analysis to arrive at a result that conflicted with the original public meaning. But unlike Chiafalo, at least the Bostock majority “originalist” opinion was only endorsed by one originalist—Justice Gorsuch—while the other originalists dissented. Bostock shows that originalists will often disagree among themselves about their methodology.
So, we have an originalist Court, in cases that purport to be decided on originalist grounds, getting the original meaning wrong. And in both of these cases, it is probably no accident that the majority reached results that are regarded by many as desirable according to contemporary sensibilities. Still, I suppose this is progress of a kind, since the Court at least purports to rely on originalism.
The case of Seila Law sounded a happier note for originalists. In that case, the Court held that the Director of the Consumer Financial Protection Bureau could not be removable only for cause. The Court did not overrule Humphrey’s Executor’s holding that commissions could be made independent of presidential control, but instead construed the case narrowly in light of the original meaning. Seila Law illustrates how originalism can have an important influence, without overruling non-originalist precedent.
The final originalist event I will discuss returns us to the Barrett confirmation. The hearings were a politically polarized affair, and sadly originalism became caught up in the controversy. The most troubling part involved a speech given by Senator Ed Markey. In an address that had many unfortunate things to say, the worst was his slanderous claim that: “Originalism is racist. Originalism is sexist. Originalism is homophobic.”
My reaction to his statement is two-fold. On the one hand, in a world where so many things are unfairly criticized as racist, sexist, and homophobic, why should originalism – which has become so important—be exempt? The charge is unfair and unfortunate, but in a weird way it shows the importance of originalism.
On the other hand, the effects of this statement cannot be dismissed with such nonchalance. This type of statement from a prominent Democratic politician suggests that originalism is both partisan and indefensible. And it makes it harder for originalism to gain acceptance. not merely from Republicans but also from Democrats
If originalism is to fully succeed, it must become the interpretive methodology of both parties. If one looks at interpretive approaches that were dominant at different periods in history, including non-originalism during the middle of the 20th Century, there was not a single version of these jurisprudences. Instead, there would be at least two approaches that appealed to different parts of the political spectrum.
If we are to see an originalist Court, it will need originalists appointed by Democratic Presidents. Realistically, that will involve a different type of originalism than mine—perhaps one that looks more like the originalism of Jack Balkin and the Constitutional Accountability Center—but an originalism nonetheless. Calling originalism racist, sexist and homophobic makes it harder for progressives to be originalists.
In the past year, originalism has shown the signs of a vibrant and growing movement. We have witnessed the appointment of a strong originalist Justice and the emergence of a plurality of originalist Justices. Originalism’s success, however, has also led to some less happy events, such as unfair senatorial attacks and mistaken originalist decisions. Overall, then, the year was a mixed one, but it nevertheless showed great promise for the future.