Post-Roe, Liberal Justices Need to Think Like Conservatives

WThe Constitutional earthquake that America felt last week when the Supreme Court issued its end-of the term rush of decisions was nothing short of a major shift in American jurisprudence’s tectonic plates, which caused deep shifts.

On Monday, Chief Justice John Roberts, writing for all six of the Court’s Republican appointees, ruled that religious schools must receive equal treatment in any school voucher system that a state might choose to create. On Wednesday, Justice Clarence Thomas, writing for the same six, struck down New York’s efforts to minimize concealed guns in public places. On Friday Justice Samuel Alito wrote for five Justices, all Republicans, and he renounced half a century of abortion law. He also explicitly overruled landmark cases like Roe v. Wade(1973). Casey vs. Planned Parenthood (2012). (2012).

Originalism is a simple word. Originalism is a profound and principled constitutional theory, available to liberals and conservatives alike, that prioritizes the Constitution’s text and original history over even seemingly “settled” precedent. And after decades of doctrinal drift on America’s highest court, originalism is now openly ascendant.

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The three new blockbuster opinions came from the Court’s three senior-most Republican appointees, with decisive backing from their more junior fellows, all self-described originalists nurtured from youth in the bosom of the originalism-focused Federalist Society: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. In all three cases, the Court’s old guard Democrats—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—howled in dissent. All three cases saw the Court reject doctrines that were solid decades ago.

America has been here at least three times before—in 1937, 1954, and 1963. The Court saw major shifts in the past three turning points. Every revolution before it threw out landmark decisions that once appeared to be settled precedent. The new Court condemned these old rulings as grave misinterpretations of history and constitutional text. All three revolutions prior to this one involved liberal originalism, and not conservative. And in that history lies a way forward for today’s liberal jurists—if they can bring themselves to see it.

In 1937, as in last week’s abortion ruling in Dobbs v. Jackson Women’s Health OrganizationThe Court ruled that the Court had abolished all putative constitutional rights that were based on a half century of precedent. Back then, the supposed rights involved powerful men’s private property; in Dobbs, the contested right implicated less powerful women’s private lives. Both times, the Court’s new blood said that the supposed rights in question—whether to enforce harsh contracts or to end pregnancies—lacked solid foundations in the Constitution’s text and original understanding. In 1937 the original legal order was best described by Lochner v. New York (1905), in which the Court struck down an eminently reasonable maximum-hour employment law as violative of a sweatshop owner’s right to drive a hard bargain with his workers. Lochner and other cases like it deployed a dubious doctrine, known to lawyers as “substantive due process,” that gave judges vast discretion to ignore laws they simply didn’t like on substantive policy grounds. With great suspicion, the new generation viewed this anti-textual and amorphous concept. Roe carelessly revived the “substantive due process” idea in the context of women’s reproductive rights, and the Court’s new blood has now reacted just as the Court’s new blood reacted in the late 1930s, by loudly denouncing this amorphous blob. Thus, Roeis now the new Lochner.

1954 Brown v. Board of EducationIt was also stated that an earlier precedent-setting case had been terribly wrong. Plessy v. Ferguson (1896). Once again, originalism provided the best justification for the Court’s doctrinal about-face, though then-Chief Justice Earl Warren’s opinion muted this fact, which became clear only in retrospect. BrownFor the simple reason, the Fourteenth Amendment’s history and text promised racial equality. Jim Crow was far from equal. In last week’s school case, Carson v. Makin, America’s current Chief Justice subtly channeled his 1950s predecessor by once again proclaiming the idea of educational equality—this time, the equal rights of religious parents and religious schools. As did Warren in BrownRoberts, in CarsonWhile he slowed down some of his most originalist arguments, his conclusion was simple: If a secular private school receives a voucher, then so must any private religious school. 2022, like 1954 for education equality based on race and gender equality, is about education equality based on religion. CarsonThe new is Brown.

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The Warren Court finally reached high gear in 1963 after Justice Felix Frankfurter, who had suffered a stroke, left. Now, the Roberts Court is shifting into high gear after Justice Ruth Bader Ginsburg’s death. Beginning in 1963, the Warren Court dramatically expanded rights under the First, Fourth, Fifth, and Sixth Amendments—involving expression rights, search-and-seizure rights, and fair trial rights, among other things. In last week’s gun case, New York Rifle v. BruenRoberts Court also expanded the Second Amendment’s rights to the right of keeping and bearing arms in a broad interpretation. BruenThe new is Gideon(1963), New Miranda (1966).

The architect of the revolutions in the judiciary is now apparent.A liberal originalist, of 1957, 1956, and 1963, was the man who was like Martin Luther standing on the foundation of history and constitutional text. The Court was led by this jurist to abandon precedent after precedent, because he maintained that old decisions were wrongly interpreted on originalist grounds.

The most important judicial originalist in modern American history was thus not a conservative—not Robert Bork, not Antonin Scalia, not Clarence Thomas, not Samuel Alito. Rather it was Hugo Black, Franklin Roosevelt’s first appointee (in 1937), who became the driving intellectual force of the Warren Court from 1953 to 1969 and left the bench shortly thereafter. Black brilliantly understood the legal, political, and rhetorical power of the Constitution’s text and history. He knew how to sing the song of America’s origins and amendments. The Constitution’s text and background history really did offer strong protections of political expression by government critics (“Congress shall make no law abridging the freedom of speech, or of the press”); the right to vote (a textual refrain that repeatedly recurs in post-Founding Amendments); and jury trials of and for ordinary folk. Black believed that all of these constitutional rights were what they meant, and that the judges must enforce them vigorously.

Whether consciously or not, today’s Federalist Society conservatives are building on Franklin Roosevelt’s first and best judicial pick. It is customary in most circles to refer to the Court’s junior Republican trio—Gorsuch, Kavanaugh, and Barrett—as Trump appointees, but in truth they are Federalist Society appointees, carefully groomed and vetted by this extraordinarily influential organization. Trump was the most unruly president in American history and knows very little about law. He sees law simply as an obstacle or weapon. However, most judges and good lawyers see law not as an obstacle or a weapon, but rather as a guideline, lens, tool, and instrument to justice and community. This grand tradition of legal thought includes the Federalist Society, which has always defended originalism as the best method for judges and other constitutional lawyers to practice law.

Meanwhile, the Court’s liberals are eschewing originalism, and they are losing badly. They do not prioritize constitutional text or its history but existing Supreme Court precedent.

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However, relying solely on precedent is a misguided argument. For starters, each justice swears an oath to the Constitution, not to the Court’s caselaw. And the Constitution’s text could not be more clear: It, and not judicial precedent, is “the supreme law of the land”—no ifs, ands, or buts. Furthermore, precedent allows deviations from the most blatantly wrong precedent. That is the lesson of 1937, 1954, and 1963—precedents on precedent, so to speak. While a dissenter may invoke precedent, the shelf life for a solely precedent-based opinion is much shorter than that of a single head of lettuce. Once a Court majority hands down its ruling, that ruling itself becomes a new precedent, and a precedent-worshipping dissenter must now change her tune in the next case. A dissenter who is originalist does not need to abandon her cause. The text is clear and precise. History tells us what it will mean today, tomorrow and for ever. Most of Black’s biggest triumphs late in his judicial career began as dissents in his early days.

When last week’s liberals tried to make arguments from constitutional text and history, they often stumbled. Take, for example, Dobbs they repeatedly and passionately invoked women’s “liberty.” But the Constitution’s text protects “liberty” in a clause that promises fair procedures such as impartial judges and juries—“due process”—and nothing more. This is not a Liberty Clause, both historically and textually. It is not a Property Clause. Lochner’s strained efforts to make it so. Rather, it is exactly what it says it is—a procedural Due Process Clause. A jurist steeped in arcane judicial precedent may have difficulty even seeing this basic point, but it is blindingly clear for a true originalist, who begins by focusing like a laser on the terse text itself: “Nor shall any state deprive any person of life, liberty, or property without due process of law.”

Carson, Justice Sotomayor opened her dissent by invoking “the wall of separation between church and state that the Framers fought to build.” This was lovely rhetoric but sloppy analysis. The “wall of separation” metaphor is not in the Constitution and our best constitutional scholars have proved that the Founding history of church and state is far more complex than this simple metaphor suggests. The most important thing is this: Carson involved a state—Maine—and not the federal government. The key amendment was thus not the First Amendment, which explicitly speaks of “Congress” and was adopted in 1791, but the Fourteenth Amendment, which limits “state” governments and was ratified in 1868. That amendment says nothing about religious “establishment” as such, but does expressly stress the “equal” status of various races and religions. Sotomayor wasn’t even looking at the right century or the right text! In Bruen, the New York gun control case, Justice Thomas’s ambitious originalist opinion for the Court took special care to highlight the possible difference between the understanding of American rights in 1791 and in 1868, yet Sotomayor and her fellow dissenters in CarsonCompletely forgot the memo.

It DobbsLiberals resent originalism’s privilege of white male history. But surely the Constitution’s text binds us, no? Judges cannot faithfully apply the text without at least paying attention to its context and considering why Americans have used certain words in it in the past. In her 2010 confirmation hearings, liberal Justice Elena Kagan explicitly said, “we are all originalists.”

Justice Black has demonstrated repeatedly throughout his career that liberal outcomes can be supported by compelling originalist arguments. And some liberal originalists working in today’s law schools are making them. They have, for example, stressed the importance of the Thirteenth Amendment in the abortion debate. The slaves were made to procreate against their will, and the modern abortion laws conscript women unwillingly into forced labor.

These and other liberal originalist ideas have plausible arguments. But if liberals lose many cases, or learn how to do it again, there will be plenty of losers. Although conservative originalists may be able to swat out compelling liberal originalist ideas from the Court, we won’t know until liberals put those ideas into practice. Even if conservative originalist arguments don’t prevail, the trail of dissent will prove to be invaluable to future jurists. It will not matter if precedent-based opinions are good for only one day.

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No team in the NBA can win consistently without being able to score three-pointers. What is true of today’s basketball court is also true of today’s Supreme Court: the game is changing and new skills are now required. The Federalist Society serves as the legal equivalent of the Golden State Warriors.

At noon today Ketanji Jackson, retiring Stephen Breyer’s successor, takes the oath to take her office. There will be new talent at the Court. In the years ahead, Justice Jackson and the Court’s other liberals will need to hit the history books hard and practice their outside shots. This will ensure that they are able to compete in the new era.

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