During a recent Heritage Foundation event, U.S. Attorney General Jeff Sessions proclaimed that “for the first time in our lifetimes, we have a majority of justices” who adhere to the principles of “originalism” in interpreting the Constitution. Does his math add up?
Some scholars, mostly originalists themselves, aren’t convinced that it does.
Most scholars do agree an originalist is someone who interprets the Constitution according to the public meaning of its words at the time of ratification, or, in the case of amendments, at the time of adoption. No one questions the originalist label applies to Justice Clarence Thomas, who bakes that analysis into his opinions whenever he can.
But who are the other four or more originalist justices that comprise Sessions’ “majority?”
Justice Neil Gorsuch has described himself as an originalist and a textualist—the same label used by the late Justice Antonin Scalia, whom Gorsuch succeeded. In two cases last term, Gorsuch showed off his originalist chops—in one, where he was the lone dissent, he said he found the majority’s approach “hard to square with the Constitution’s original public meaning.”
Thomas and Gorsuch—OK, that’s two justices.
Yale Law School’s Akhil Amar, a self-described liberal originalist, counts three justices by adding newly confirmed Brett Kavanaugh to the mix. “I think with three we now have more self-conscious originalists than at any other moment in modern memory,” Amar said.
But don’t be too quick to add Kavanaugh to the list, other scholars said.
Shortly after Kavanaugh’s nomination in July, Eric Posner of the University of Chicago School of Law, who has written extensively on originalism, said on his blog: “There is, in fact, no evidence—at least, none I can find—that Kavanaugh considers himself an originalist. In fact, in his writings, Kavanaugh hardly mentions originalism at all. A textualist, yes. An enthusiastic fan of Justice Scalia, yes. But also a fan of William Rehnquist, no one’s idea of an originalist.”
What does Kavanaugh have to say?
“Originalism, to my mind, means in essence constitutional textualism—meaning the original public meaning of the constitutional text,” Kavanaugh said at his confirmation hearing. “Now, it’s very careful, when you talk about originalism to understand that people are hearing different things sometimes.”
Kavanaugh reminded anyone watching that Justice Elena Kagan, at her confirmation hearing, said, “We are all originalists.” Kavanaugh added: “By that she meant the precise text of the Constitution matters, and by that the original public meaning—of course informed by history, tradition and precedent, those matter as well.”
Originalist scholar Michael Ramsey of the University of San Diego School of Law said he believes Sessions counts as his majority not just Thomas, Gorsuch and Kavanaugh, but also Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.
“I’ve described Roberts and Alito as ‘originalist-oriented’ or ‘originalist-influenced’ justices,” Ramsey said. “They will often use an originalist approach—and here I mean not just a nod to the framers, but a really full-scale originalist inquiry of a Scalia type. But I think they are different from the fully committed originalists.”
As for Kavanaugh, Ramsey said, it is not clear he will be a fully committed originalist as a justice, “whatever he said in his confirmation hearings. I think he will, but he might instead end up more in the Roberts camp.”
Josh Blackman of South Texas College of Law pointed out that Roberts, during his confirmation hearings, “expressly disavowed” labels such as originalism. Roberts told senators he did not have “an all-encompassing approach to constitutional interpretation” and that he “would follow the approach or approaches that seem most suited in the particular case.”
“He has joined originalist opinions, but I’m not sure he would call himself an originalist,” Blackman said. “Justice Alito is harder to categorize. I wouldn’t put him in the same boat as Thomas or Gorsuch.” Where Kavanaugh falls, he added, is to be determined, although his comments during his confirmation hearings suggest he is an originalist.
Alito has called himself an originalist, said Saikrishna Prakash of the University of Virginia School of Law. In a 2014 interview, Alito said: “I start out with originalism. We can look at what was understood to be reasonable at the time of the adoption of the Fourth Amendment. But when you have to apply that to things like a GPS that nobody could have dreamed of then, I think all you have is the principle and you have to use your judgment to apply it. I think I would consider myself a practical originalist.”
Are you convinced yet that the court has a majority of originalists, or just confused?
Prakash said originalists come in different flavors and have different conceptions of the power of precedent and the power of doctrinal tests. Two originalists can come to different answers on the same question, he said. And two self-styled originalists can believe different things about whether some factor is relevant and how much weight to assign it.
“Moreover, someone can be an originalist but also be other things at the same time and thereby claim to be originalist and be identified as such,” Prakash said. He added: “Remember Justice Kagan’s ‘We are all originalists now.’ If she is right, there are nine and not five!”
Sessions clearly doesn’t think each member of the “team of nine” is an originalist.
Most scholars agreed with this assessment from Ramsey: there’s a “little overstatement / wishful thinking” on the part of Sessions.
“I agree with the attorney general that this is likely to be the most originalist court we’ve had in a long time, even if I think he’s overstating it a bit,” he said.