Liberals Had a Dream to Fix the Supreme Court. It’s Time to Admit the Truth.
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
During her confirmation hearing in 2022, Justice Ketanji Brown Jackson introduced herself to Congress as an originalist. This surprising move from a presumptively liberal justice signified to many the triumph of originalism as the accepted methodology of the Supreme Court. Jackson was following in the footsteps of Justice Elena Kagan, who famously declared that “we are all originalists now” during her own confirmation.
Kagan, however, came to regret that quip after watching her conservative colleagues implement a series of GOP policy preferences in the name of applying the Constitution’s “original” meaning, which is what originalism claims to be. She is surely not the only progressive with second thoughts: The legal left’s embrace of originalism was a major influential development in the 12 years between Kagan’s and Jackson’s elevation to the court—one that’s arguably waning today, despite Jackson’s appointment. After three terms of precedent-smashing activism by the Supreme Court’s 6–3 conservative supermajority, almost always under the banner of originalism, the methodology looks more intellectually bankrupt, manipulable, and dangerous than ever.
Some liberals have responded with accusations that this supermajority peddles “fauxriginalism,” cherry-picking history to fit Republicans’ favored results. This allegation is certainly true, but doesn’t answer the underlying question: Is it even a good idea to concede that the “original meaning” of the Constitution—even if it could be reliably ascertained—is the authoritative one? Jackson’s approach illustrates the benefits and risks of trying to beat originalists at their own game from the left. And with each passing term, the payoff looks smaller and smaller.
For progressives, the problems begin with the origin of the theory. Conservative scholars, politicians, and activists developed the idea of originalism in response to Brown v. Board of Education—yes, the decision that desegregated public school—arguing that the Framers of the 14th Amendment would never have intended to integrate public education. They may have been right about that claim: The same Congress that proposed the 14th Amendment in 1866 segregated the District of Columbia’s public schools, while a supermajority of states that ratified the amendment also strictly separated education by race. That doesn’t mean the push toward integration was the wrong move for our country and our 20th-century understanding of what equal rights ought to mean legally. Regardless, in the coming decades, the burgeoning conservative legal movement refined and pushed the theory to combat other contested Supreme Court decisions, including Roe v. Wade, Griswold v. Connecticut (birth control), Miranda v. Arizona (self-incrimination), Reynolds v. Sims (malapportionment), and Regents v. Bakke (affirmative action).
Today, originalism is the house style of the Federalist Society, the lavishly funded network of conservative lawyers who provide intellectual cover for the Republican Party’s preferred policies. It’s propounded, to some degree, by all six conservative justices, who have placed it at the center of their continual smash-and-grab campaign against progressive precedent. When the Supreme Court overruled Roe, its justification boiled down to a single claim: Abortion was largely illegal when the 14th Amendment was ratified, so it may still be criminalized today. When the court established a new right to carry guns in public, it deployed the same reasoning: People could allegedly carry guns in public when the Second Amendment was ratified, so they have a right to do so today. And when the court struck down affirmative action? Same story: The original meaning of the equal protection clause requires the law to be “colorblind,” the court declared.
This last decision gave Jackson an opportunity to flaunt her skills as a progressive originalist, as did an earlier case designed to gut the Voting Rights Act’s remnants. In both, she delivered: The justice drew heavily upon the work of historians, like Eric Foner, who reject the “colorblind” conception of the 14th Amendment in favor of a nuanced interpretation that allows for “race-conscious” remedies to protect minorities’ equal citizenship. Jackson pitched this theory in a lengthy monologue during oral arguments in the voting rights case—her second day on the bench—as if to warn her conservative colleagues that their bogus originalism would no longer go unchallenged. And perhaps her shaming strategy worked, since the court ultimately delivered an unlikely victory for the Voting Rights Act.
Jackson’s approach here echoed the work of advocacy groups that seek to employ originalism for progressive ends, most prominently the well-respected Constitutional Accountability Center. The goal here is to engage with conservative judges on their own turf, demonstrating that their own methodology would actually yield a liberal result if they did it honestly. In short, these advocates try to out-originalist the originalists. And on select topics, the tactic can work marvels. Race is one example, since the conservative fixation with a “colorblind” Constitution so obviously contradicts the historical record. Federal power is another, since the Framers clearly gave Congress sweeping powers to regulate commerce. (That’s why Jackson’s most important majority opinion so far is an originalist defense of Congress’ ability to create private rights through its spending power.) Many protections for criminal defendants, too, like the right to trial by jury and the guarantee against self-incrimination, have strong historical foundations.
Other liberties treasured by progressives, however, do not end up saved by progressive originalism. The Supreme Court’s historical analysis in Dobbs may have been sloppy and inaccurate, but that doesn’t change the fact that there’s no evidence Americans thought the 14th Amendment safeguarded abortion back in the 1860s when it was written. Selectively deploying originalism when it bolsters progressive aims does not solve the underlying problem: that, as Hawaii Supreme Court Justice Todd Eddins has put it, the theory champions the views of “the few white men who made laws and shaped lives during the mostly racist and misogynistic very old days.” This flaw may be most pronounced in cases involving the civil rights of those whom the authors of the Constitution scorned or ignored.
Consider, for instance, a group of people who were excluded from the political process—indeed, from public life—when the 14th Amendment was ratified: women. Sex equality is rooted in the amendment’s equal protection clause, which became law in 1868. During this period, though, in most of the country, women had virtually no rights at all. Married women could not own property, sign contracts, or file lawsuits under the doctrine of “coverture,” which subsumed their legal identity into that of their husband. Men could legally beat their wives under the doctrine of chastisement, which allowed for “moderate” physical violence in the home. As one court put it in 1868 while upholding the acquittal of a man who whipped his wife, the judiciary could “not interfere with family government in trifling cases.” (This history suddenly became relevant when the lower courts struck down a law barring domestic abusers from possessing firearms.)
Conservative litigants are not even shy about citing this evidence when defending discriminatory laws. South Carolina placed it front and center when arguing for same-sex marriage bans in 2015. The state cited congressional debates over the 14th Amendment’s impact on coverture laws that denied women equal citizenship. At the time of the amendment’s adoption, some congressmen fretted that the new amendment might restrict the ability of states to discriminate against women. Contemporaneous comments from the primary author of the 14th Amendment himself, Rep. John Bingham, assured them that the new promise of equality would not interfere with state control over “domestic relations.” His comments reflected a broad consensus from the time, reflected in the congressional record, that the amendment would not establish equality, or even a baseline of civil rights, for women. (South Carolina cited this history to show that discrimination against both women and gay people remained constitutional, by the way.) If the Supreme Court adopted this reading of the equal protection clause, it would have to overturn every past ruling against sex discrimination, making husbands the “head and master” of their households once again.
Progressive originalists generally respond to this obstacle by defining rights at a higher level of generality. The Constitutional Accountability Center, for example, argues that the equal protection clause forbids discrimination against women and gay people by outlawing “class-based” legislation. By denying rights to an entire group of people, the theory goes, the government condemns them to second-class status, stamping them with an impermissible badge of legal inferiority.
It’s a fine idea—but is it really originalism? The answer probably depends on whether you want to salvage originalism or supplant it. If you want to salvage it, then sure: It’s perfectly acceptable to define rights so broadly, on such an abstract level, that they can be squared with the “original meaning” of the Constitution. As George Washington University law professor Peter J. Smith has persuasively argued, that is in fact precisely what today’s conservatives already do when mounting an originalist defense of Brown v. Board of Education. Evidence that the 14th Amendment’s Framers supported school segregation is overwhelming. So Brown’s defenders on the right define “equal protection” with sufficient abstraction to mandate integrated public education.
Should progressives want to salvage originalism, though? Why step in to shore up a flailing theory that was born out of contempt for Black children, women, and criminal defendants? A theory that the Supreme Court is currently manipulating to impose conservative policy goals like nationwide public carry under the thin guise of judicial review?
Because originalist justices like Clarence Thomas are so incredibly bad at interpreting history, cherry-picking facts and crediting debunked sources, it may be tempting to conclude that they’re just doing it wrong. But why do it at all? The strong argument for progressive originalism is the hope that advocates can convince conservative judges to issue liberal decisions if they just present enough historical evidence. That hope feels increasingly hollow. When Thomas is presented with proof that his past views were rooted in bogus history, he simply dismisses it. Activist scholars flood the nation’s law journals, which are not peer-reviewed, with tendentious or outright false historical claims, which conservative justices then cite as the gospel truth. This is less like a legitimate judicial or academic enterprise than like a scam to reverse-engineer outcomes to fit a partisan agenda. Pointing out inaccuracies is not going to change the outcomes.
With originalism’s reputation so tarnished, maybe progressives should stop co-opting the right’s brand altogether. Maybe they should embrace constitutional values like equality without squeezing them into a framework that was literally designed to shut out minorities from full citizenship. Maybe rather than trying to beat conservatives at their own game, progressives should present a competing vision of constitutional interpretation to the public—one which acknowledges that original meaning is often unknowable, and too frequently shackled to the antiquated views of dead white men. And maybe that would give disillusioned Americans a reason to believe in the rule of law once again.
