Originalism in the Supreme Court: Legacy and Impact
Last week, the Supreme Court heard arguments on Gill v. Whitford, a case that will determine the future of voting districts in America. Gill v. Whitford is concerned with the practice of strategically drawing voting districts within states to favor one political party.
And this decision is set to be one of the most important in our lifetimes.
The case originated in Wisconsin, where voting districts were drawn such that less than half of Wisconsin’s population was politically represented by nearly two-thirds of its state’s representatives. As citizens of a representative democracy, we ought to be deeply unsettled by this injustice.
The most important question the court will answer—whether or not partisan-gerrymandering claims are justiciable—carries great consequences for America’s political future.
Unfortunately, Gill v. Whitford is a perfect example of a case whose outcome is subject to the whims of political ideology masquerading as restrained constitutional interpretation. It is toward this methodology where we ought to direct our reproach.
Associate Justice Stephen Breyer identified six tools which all justices ought to use “to help find proper legal answers.” These tools are text, history, tradition, precedent, purpose, and consequences.
From the Supreme Court’s inception, justices have been staunchly divided in their votes on cases and in the outcome of their decisions. Indeed, from Bush v. Gore which is said to have driven Justice Souter to retirement, to 2nd Amendment gun rights in Heller, fundamental differences in constitutional interpretive approaches have provoked vehement dissent.
Breyer outlines one type of decision-maker, comprising the judicial camp of constitutional pragmatists who tend to “emphasize certain of these tools, particularly purposes and consequences.”
By contrast, there also exists a judicial camp called “originalists.” These originalist judges believe in a form of legal absolutism which takes its cues from the meaning of the Constitution at the time it was ratified.
A classic example of originalist logic that resurfaces from time to time is in the debate over the Cruel and Unusual Punishment Clause of the 8th Amendment and how it relates to the death penalty. Originalist logic deals with this in a straightforward manner: since the death penalty was not proscribed by the 8th Amendment at the time of the ratification of the Bill of Rights, the death penalty cannot be proscribed by the 8th Amendment today.
Popularized by Robert Bork and sanctified by the late Justice Antonin Scalia, originalist arguments are generally logical and consistent, and thus may seem impenetrable. However, far from being impenetrable, arguments made by originalism are much more debatable originalism’s advocates would like to admit.
It is important to note, however, that some legal scholars have argued that Scalia’s originalism is not “responsible originalism.” In an opinion piece for the New York Times, Yale Sterling Professor of Law and Political Science Akhil Reed Amar writes: “Too often, Justice Scalia…failed to read the Constitution’s text all the way to the end—to give due weight to its transformative amendments added by post-founding reformers.”
Amar justifies his criticism by explaining the following: In 14th Amendment litigation about expanding individual liberties which reached the Supreme Court, specifically the case of marriage equality, Scalia stopped short in his allegiance to Constitutional history.
Scalia, Amar argues, often did not account for the fact that the purpose of the 14th Amendment was to incorporate the Bill of Rights to the state (and thereby grant individualized liberties). Instead of using this into account to inform his decisions, Scalia chose to look at history that supported his personal political leanings. Forsaking the underlying purpose of the14th Amendment allows for an easy political out when it comes to denouncing the constitutional basis for same-sex marriage. This, Amar claims, made Scalia a “false prophet” of originalism.
Despite Scalia’s death, this false propheteering persists in the Court today. Justice Clarence Thomas LAW ’74, for example, has argued that race-based affirmative action is not constitutionally protected, using Scalia-like historical negligence to reach his decision. He forsook the underlying intent of the 14th Amendment Equal Protection Clause to score political points with conservatives.
The purpose of originalism is to ascertain the original meaning of the constitutional clause in question. And therefore originalism, done right, requires scrupulous historical study and deference to the law’s evolution. The Constitution has changed from its state in 1789, and Originalist judges miss the point by disregarding the changes the Constitution (and its interpretation) have undergone.
Used without proper consideration for the context of the law and Constitution, as in the case of Scalia’s marriage equality dissent or Thomas’ affirmative action opinion, originalism ignores the fact that the meanings of laws can and do change over time.
If originalist judges merely pick and choose which aspects of history justify their political aims when interpreting the law, then originalism is only a proxy for judicial activism. That any of our Supreme Court justices, Thomas in particular, conform to this methodology is, therefore, cause for serious concern.
So where does Gill v. Whitford fit into this picture? And what is the proper response as citizens to disagreeable judicial interpretations?
In terms of Gill v. Whitford, the Court is likely to be divided on this case as it has been throughout the history of partisan-gerrymandering litigation. In a 2004 gerrymandering case, the court split 5-4 on the issue of suing a state over unfair districts. Interestingly, the Court did not arrive at a single majority opinion.
What the Court did arrive at, however, was a scathing plurality opinion in which it suggested that the solution to partisan-gerrymandering simply did not exist and thus the Court could not judge partisan-gerrymandering questions.
This opinion was delivered by none other than Justice Scalia.
The upshot is that partisan-gerrymandering cases, like those in Wisconsin, delegitimize our representative government. So, tackling extreme partisan-gerrymandering should be a political layup. Yet, if Scalia’s opinion provides an insight into how his originalism might deal with partisan-gerrymandering, it is that the court cannot determine such questions. This non-answer is, in itself, an agenda.
This is where activists who truly wish to enact change ought to focus. Electing a president who will appoint justices devoid of political agenda is vital. Maybe they should even, as Amar puts it, appoint a “true originalist.”
Because Thomas follows the same originalist ideology as Scalia, he will likely agree that gerrymandering claims are not for the Court to decide. Thus Gill v. Whitford’s most important question—whether or not partisan-gerrymandering claims are justiciable—is vulnerable to an ideology that works at the expense of the legitimacy of our representative government.