Originalism? Living Constitutionalism? Who Cares?

Conservatives are ecstatic to have Amy Coney Barrett on the Supreme Court, but have you considered what makes a judge “conservative”? Is it the results they reach or the methods they use to make a decision? Conservative judges promise that they are wedded to a process of constitutional and statutory interpretation and follow that process to the outcome no matter what that outcome is. They maintain that they would never, ever, start from wanting a certain result and work backwards from it seeking reasons for that favored result. No, no. They merely use neutral legal interpretive tools in a consistent manner to reach their decisions about the constitution and the laws. They apply originalism, original public meaning, textualism or some other text-based method to tell us what the constitution and laws allow or forbid. (I have written about methods of legal interpretation several times including on August 22, 2018, Originally it was not Originalism – AJ’s Dad (ajsdad.blog), and on March 24, 2017 Originalism to Textualism – AJ’s Dad (ajsdad.blog).)

          I suspect that most of us, however, don’t give a hoot about the analytic methods used by the Court. Few of us could explain the methodologies. We are concerned with the results. I thought of this a few years ago when the Supreme Court held that firing a gay or transgender employee violated a federal statute that prohibits employment discrimination “because of . . . sex.” The opinion was written by Neil Gorsuch, a conservative favorite. Gorsuch’s analysis relied on what is called textualism, a method championed by Antonin Scalia and other conservative jurists. I am simplifying somewhat, but the method basically says that the statutory words should be applied as written. So, Gorsuch reasoned that if a man is fired for having sex with a man when a woman would not be dismissed for having sex with a man, then the firing is discrimination based on sex. If a woman were fired from a job when a man would not be, it is sexual discrimination. Thus, if a man is fired from a job when a woman would not, that is also sexual discrimination. Gorsuch reasoned that the dismissal of a man because he has sex with another man when a woman would not lose her job for having sex with a man violated the statute.

          A conservative outcry ensued. Some conservatives discussed Gorsuch’s methodology and concluded that he had misapplied textualism, but many others merely decried the outcome without discussing the majority’s analytical method. They felt that a result that furthered the so-called “homosexual agenda” had to be wrong no matter how the decision was reached. They cared about the outcome, not the methodology. But I think that liberals were similar. They cheered the outcome but did not care about the method used to reach it.

          I thought of this again when the recent Supreme Court term ended. The Court rendered two decisions on its last day. Almost immediately I received an email from a right-wing group praising one of the decisions: “Today, the U.S. Supreme Court issued an important decision in Americans for Prosperity v. Bonta, a donor disclosure case with direct implications for religious liberty. In its 6-3 ruling, the Court held that a California law requiring the disclosure of donor names is unconstitutional.” The notice from this religious group continued, “Forcing charities to hand over and make their donor information public is unconstitutional—and it’s also very dangerous. Coupled with the toxic ‘cancel culture’ that’s all around us, government having at its fingertips a compiled list of religious people and/or those who support faith-based groups is a recipe for disaster. The ability to associate with others of like mind is indispensable to freedom. We’re very pleased that the Court recognized the disclosure of names and addresses of citizens simply for donating to a cause is chilling to the freedom of association—including the freedom to associate with, join and donate to the faith-based organizations that are near and dear to us.” (This group was clearly wrong when it thanked me “for generously supporting” it and labeled me a “courageous” supporter. I am on their email list only because I requested a free copy of the Constitution from them, which they generously supplied.)

          The point here is not to discuss whether the Supreme Court decision was correct but rather to emphasize that these words of praise are for the outcome of the case, not for the methodology that led to the result. There was no mention of the conservative buzzwords of originalism, original public meaning, or textualism.

          On the same day, the Supreme Court also decided that changes to Arizona voting laws that made it more difficult for some voters to cast a ballot did not violate the Voting Rights Act even though the Arizona measures had a disproportionate effect on minorities. I have read some good commentaries contending that the conservative majority was not properly reading the text of the statute, but was, in effect, rewriting the law which forbids all changes in voting law with a disparate impact on minorities, while the Court decided that the disparate effects were so small that under the Voting Rights Acts they did not matter  Others, however, without addressing the Court’s methodology, simply placed a Jim Crow label on the decision.

          I felt something similar when I watched a documentary about Ruth Bader Ginsburg a few years ago. The movie presented her inspiring life story and claimed that as a lawyer and judge, she helped move the law in directions that many approve of. But the film did not begin to explain her analytic methods or how her methodology may have been the appropriate way to examine constitutional questions. She was a heroine to many not because of her methodology but because of the results that she reached.

          In short, many on both the right and the left have little interest in the analytic methods the Supreme Court uses. They are concerned only with the outcomes.

Pence and the Demise of Conservative Jurisprudence

          In a recent interview on the Christian Broadcasting Network, vice present Michael Pence labeled John Roberts, the Chief Justice of the United States Supreme Court, a “disappointment to conservatives.” Pence cited some of Roberts recent decisions about LGBT workplace discrimination, immigration, abortion, and religious demands for favored treatments. Pence, however, was not making jurisprudential or constitutional comments in criticizing the Chief Justice. Pence was trying to score political points. He wants to make Roberts into a campaign issue. Pence insisted that the Chief Justice’s decisions “are a reminder of just how important this election is for the future of the Supreme Court.” He is concerned that the judicial appointments are not the campaign issue that they were four years ago. “We remember the issue back in 2016, which I believe loomed large in voters’ decisions between Hillary Clinton and the man who would become president of the United States,” he said. “And some people thought that it wouldn’t be as big an issue these days. But I think that’s all changed.”

          Pence apparently does not believe that Chief Justice Roberts is sufficiently conservative, that the Court needs a greater number of conservative justices, and that the reelection of Trump is necessary for those appointments. The comments, however, left open an important issue: How does Pence, or conservatives generally, or the religious people Pence was trying to reach on the Christian Broadcast Network define a conservative or “good” Supreme Court Justice? In discussing recent cases, Pence indicates that his touchstone is the outcome that a justice reaches. He expects a “conservative” justice to rule against abortion, Obamacare, and immigration, and in favor of religious claims. Other conservatives might expect conservative justices to side with business, with law enforcement, with gun owners, against regulations, against campaign finance restrictions, and against voting rights.

          However, assessing a justice against what are thought to be desirable conservative outcomes is measuring the justice against political principles, not legal ones. Conservatives used to decry liberal justices as unprincipled, claiming that the judges did not follow neutral legal principles and were only interested in reaching results justices personally desired. Judges, however, are not supposed to act as politicians or even lawyers. As an attorney, when I represented a client on appeal, I started with the desired result, which was usually seeking to overturn a criminal conviction. I then sought out precedents, arguments, and reasonings that I hoped would lead to the desired result. I was not acting neutrally. When judges do something similar and seek out justifications for a result they want, the judge is not acting as a judge but as a political partisan. A judge is supposed to use neutral principles and follow them to wherever that might lead, even if that is not the result desired by political instincts.

          Not all nonpartisan judges, however, agree on what neutral principles should be applied, and it was the selection of the judicial methodology that supposedly defined conservative jurists, notably Antonin Scalia. They believed in “strict construction,” “originalism,” or “original public meaning.” (I have discussed these terms earlier on this blog. You can search for them.) They believed in enforcing the text of a statute and did not seek out the drafters or adopters’ intentions in passing a law. They believed that precedent was important and should never be disregarded lightly.

          Pence, however, did not mention any of these conservative jurisprudential principles in complaining about Roberts. Instead, he emphasized the Court’s June ruling that ruled unconstitutional a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. “That’s a very modest restriction on abortion providers, but a narrow majority in the Supreme Court still said it was unacceptable,” Pence said. “And I think it’s been a wake-up call for pro-life voters around the country who understand, in a very real sense, the destiny of the Supreme Court is on the ballot in 2020.” (Pence’s notion of “modest” is striking since it was expected that the state rule would have forced all but one of the Louisiana’s abortion providers to close. I wonder if Pence would label as “modest” a gun control measure that would cause all but one of Louisiana’s gun shops to shutter.)

          Pence did not mention that only a few years ago, the Supreme Court had struck down an almost identical admitting-privileges requirement from another state. Roberts in his recent opinion wrote that he felt compelled by good, what might say, conservative jurisprudence to follow that precedent. My point, however, is not to defend Roberts or his decisions. (Roberts wrote the opinion and was the fifth vote in one of most important and least defensible Court decisions of last generation—Shelby County v. Holder, where the conservative justices aborted much of the Voting Rights Act thereby giving political conservatives more power.) Instead, we should see that the conservative Pence does not really want conservative justices. He wants judges who reach the “right” political, religious, and social outcomes as he as a conservative politician defines right. He does not care about neutral judicial principles, whether they be conservative principles or not. He wants a political, activist court of the kind conservatives used to rail against. And, once again, conservative principles disappear.

The vice president’s criticism of the chief justice’s jurisprudence comes after Roberts sided with the high court’s Democratic appointees on several occasions in recent months, dealing the Trump administration defeats on issues including LGBT workplace discrimination, immigration and abortion.

Roberts, an appointee of President George W. Bush, also joined his Democratic-appointed colleagues two weeks ago when the court rejected a Nevada church’s request to block the state’s cap on attendees for religious services amid the coronavirus pandemic.

John Roberts

Supreme Court Chief Justice John Roberts. | Leah Millis/AP Photo


The court’s public information office did not immediately respond to a request for comment from Roberts on Pence’s interview.

Following the court’s rejection of his attempt to end the Deferred Action for Childhood Arrivals program’s protections for roughly 650,000 immigrants, President Donald Trump pledged in June to unveil a new list of potential justices ahead of November’s general election.

The announcement by the president represented a reprisal of a campaign tactic that helped him shore up conservative support during his 2016 White House run, when he issued a list of candidates he said he would consider appointing to the Supreme Court in an effort to win over evangelical voters.

“He did that in 2016. He kept his word,” Pence said Wednesday of Trump’s list. “He’s going to do that in the fall of 2020, and in the next four years, he’ll keep his word and appoint more principled conservatives to our courts.”

Since assuming office, Trump has routinely touted his presidency’s rapid rate of judicial confirmations — including the hard-won installations of Neil Gorsuch and Brett Kavanaugh on the high court — to energize his base in public remarks and at political rallies.

But it was Gorsuch who sided in June with Roberts and the court’s Democratic appointees in the landmark LGBT anti-discrimination case, authoring the majority opinion ruling to protect gay, lesbian and transgender employees from being disciplined, fired or turned down for a job based on their sexual orientation.