SCOTUS & Originalism

Episode Notes

Transcript

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David H. Gans: What we see is a deeply conservative court that cherry-picks the history to reach conservative results that manipulates the Constitution, that sometimes looks of history when it supports the result they want to reach and other times turns a blind eye to it.

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Male Speaker: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to the Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named May It Please The Court and have two books out titled ‘How to Get Sued’ and ‘The Sled’.

Well, originalism is defined as a type of judicial interpretation of a Constitution, and here, the United States Constitution that aims to follow how it would be understood or how it was intended to be understood at the time that it was written. With the addition of Justice Amy Coney Barrett to the High Court, there are now four, perhaps six about originalists to the Supreme Court including Justices Thomas, Gorsuch, Kavanaugh, and Alito and maybe one more, which we will hear about.

Originalism has been cited in landmark decisions including Dobbs & Bruen, but are these justices abiding by the true definition of the word? Are they truly originalists or are they picking and choosing their history based on their own ideology?

Today on Lawyer 2 Lawyer we’re going to discuss SCOTUS’ move toward originalism, the impact and the conflict between Justice Thomas on the one side and Justice Jackson and a couple others on the other side. And to help us better understand this issue, we’re joined by David H. Gans, he is the Director of Human Rights, Civil Rights, and the Citizenship Program at the Constitutional Accountability Center. He is an experienced Constitutional Litigator and Scholar. David joined CAC after serving as the Program Director of Cardozo Law School’s Floersheimer Center for Constitutional Democracy and as an Attorney with The Brennan Center for Justice at NYU School of Law where he worked on Campaign Finance and Voting Rights cases.

Back in July, David wrote a great piece for ‘The Atlantic’ titled “This Court Has Revealed Conservative Originalism To Be A Hollow Shell”.

Welcome to the show, David.

David H. Gans: Thanks so much for having me.

J. Craig Williams: Well, David, let’s talk a little bit about originalism; what is it and how did we get this term?

David H. Gans: So originalism is the idea that the Constitution’s provisions should be interpreted with reference to the Constitution’s text, its history, and the original meaning of the words that are in the document. It is a theory that I think sort of first came to prominence in the 1980s and was pushed by conservatives. I think actually the term “originalism” itself was from a law review article by a law professor who was critical of those theories, but came up with the name of originalism and it stuck and the theory has had a life of sort of growing importance. And today, we’re at a point where you have a conservative super majority on the Supreme Court, they’re not all originalists, but a number of the justices insist that originalism is what counts and precedents that don’t adhere to the original meaning are ripe for being overruled. So we are having a court that sees itself as originalist and sees itself as bound by the Constitution’s text in history and is using that as a mantel for sweeping changes as we saw last term and as we’re seeing signs of in some of the big arguments, the court has heard this term.

J. Craig Williams: Let’s go back to 1776 and the original Constitution as it existed, is there any indication in the Constitution that it should be interpreted that way or is it, does it say that it’s meant to be a living document and change over time?

David H. Gans: I think so when you say 1776, one of the most important things that I think is often missed in these debates is, it’s critical to talk about the whole Constitution and many of the problems that we see today, come from the fact that those who say, “I’m an originalist look at the document very selectively”, but if you’re committed to the Constitution’s Texan history —

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— you have to look at the whole Constitution. So that’s not only the original Constitution of 1789, that was of course marred by compromises made with slavery, that throughout our history we’ve changed. And so it’s not only the 1789 Constitution, it is very much the reconstruction Constitution that Obama’s chattel slavery that put guarantees the fundamental rights and equal citizenship into the Constitution that protected voting rights. You have to look at the Constitution’s Texan history, the whole history not simply just one piece of it.

J. Craig Williams: So you’re saying we’re going to look at these amendments, I guess, you’re saying that three-fifths compromise would be the original way to interpret it and we’d be stuck with that, right?

David H. Gans: Well, so the three-fifths clause is sort of an example of a part of the Constitution that was a very specific rule. I think many of the kind of greatest disputes we are seeing today are sort of what is the meaning of open-ended parts, majestic guarantees of equal protection, due process that where we see kind of arguments for originalism being made most strongly with respect to the three-fifths clause, that was of course specifically changed by the Fourteenth Amendment.

J. Craig Williams: Exactly right.

David H. Gans: And that is, our Constitution is not static, it’s changed in immeasurable ways to make America more free, more just, more fair, more democratic. And so, if you care about the Constitution’s Texan history, you have to look at the whole Constitution not simply a small piece of it.

J. Craig Williams: Well, you said you mentioned it in the 1980s, we began to see the Supreme Court move toward originalism, what was the spark that got that? What was the turning point?

David H. Gans: I mean, I think so one big turning point was the nomination and confirmation of Justice Antonin Scalia to the court who think in the modern era is sort of considered the first, a validly originalist justice who served on the bench, many members of the court, who are currently on the court, sort of look to Justice Scalia’s model for inspiration. I think you can sort of look at Justice Amy Coney Barrett who at her confirmation testimony sort of talked about Justice Scalia, who she clerked for and said her former boss’ view of how to interpret the Constitution was the same as her own. So I think Scalia’s addition to the court certainly changed arguments before the court because Justice Scalia often said I am going to take an originalist view of the Constitution now. I will in many areas he said he did that but he got the Constitution deeply wrong in many ways, but he was in the modern era the first justice who said I am going to look at the Constitution through an originalist’s lens.

J. Craig Williams: When you’ve got Barrett and you’ve got Alito now, Thomas and Scalia, those are the four, right?

David H. Gans: Well, so I think Justice Thomas, certainly takes the position that originalism is what counts. Justice Barrett similarly Justice Gorsuch, there are times in the past where Alito was quite critical of originalism and there was a case a number of years ago where he sort of — he was arguing back and forth with Scalia and he said, you don’t sort of ask what would James Madison have done, but certainly of the conservative super majority you’d see justices who will — all of them will make arguments rooted in constitutional Texan history though. Again, what’s sort of critical to note is how selective sometimes you see that? If you look at oral arguments before the Supreme Court, and there are a number of cases. This term that make a notable contrast you have, for example, the oral argument in the affirmative action cases back in late October, which is an area where there’s actually a ton of Texan history because the framers of the Fourteenth Amendment were the originators of affirmative action and contemporaneous with the Amendment they passed a number of race-conscious measures to ensure equality and foster equal citizenship in the transition from slavery to freedom and those were attacked for many of the same reasons that conservatives today attack affirmative action that it wasn’t colorblind that it took race into account and the framers rejected those —

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— and passed those into law, contemporaneous with the Fourteenth Amendment. But at the oral argument, one of the things that was really stunning was the court’s conservative originalists weren’t really interested at all in that history and it was Justice Kagan who said, “What would have committed an originalist do with his history of race-consciousness”, and this kind of goes too often you see conservative originalists on the court, taking a very selective view, and particularly taking a very dim view of the reconstruction amendments that really were a second founding that revolutionized the Constitution, that guaranteed equality, protected voting rights, ensured equal citizenship, that were a major break from the founding Constitution that only put a small number of restrictions on the states, the Thirteenth and Fourteenth and Fifteenth Amendments really changed the Constitution in a fundamental way. They’re aimed at ending racial subordination, ensuring a multiracial democracy and often you see the court’s conservative originalists kind of taking a dim view.

One of the things that you’ve seen this year is kind of the voice of Justice Ketanji Brown Jackson, who said, “When I look at Texan history, it shows me that race-conscious remedies are within Congress’ power to enact. This was a point she made in one of the first cases the court heard this term, a really important voting rights case out of Alabama that deals with racial gerrymandering by the Alabama State Legislature where Alabama is saying, “The Voting Rights Act has to be given a very narrow purview because of concerns of colorblindness” and Justice Jackson made the point very forcefully in her second day hearing arguments, this term, making the point that if we look at that Texan history, taking into account, race is not itself unconstitutional, in fact, that was the very point of the Fourteenth and Fifteenth Amendments was to take account of a race to redress a long history of racial subordination and guarantee equal citizenship including at the ballot box.

So that’s an area where you’re seeing progressive, say, hey wait, we’ll look at Texan history too, but the Texan history shows that Congress has broad power to eradicate racial discrimination at the polls and that landmark statutes that seek to realize those constitutional promises should be broadly, not narrowly interpreted as conservatives would like to do.

J. Craig Williams: I’d like to draw a quote from your article that you wrote in ‘The Atlantic’ where you said, “It is a deeply unprincipled conservative court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres”. It sounds like we should attach an adjective to originalism like Selective Originalism.

David H. Gans: I think that’s exactly right, and that is a point that we at the Constitutional accountability of long said that if you’re going to be an originalist, no, it can’t just be for some time, you have to take the Texan history seriously, kind of across the board and what you do when you look at Texan history across the board, you find that it supports progressive results in many, many cases, but often you see from the conservators of the Supreme Court are very selective view of originalism and one good example of that is, as I mentioned, the affirmative action argument, where conservatives didn’t grapple with very strong Texan history that shows that race-conscious measures to foster equality are permissible to realize the values of the Fourteenth Amendment.

J. Craig Williams: Well, David, it’s time for us to take a quick break to hear a word from our sponsors, we will be right back.

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And welcome back to Lawyer 2 Lawyer. I’m joined by David Gans, he’s the Director of Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.

Well, David, we’ve been talking pretty hard about originalism and if I’m hearing you correctly, it’s almost as if originalism itself in its purest theory is defeated by the theory of originalism. I mean, I don’t mean to be syllogistic, but if you’re going to take an originalist interpretation of the Constitution you have to recognize what Kagan and Jackson are saying, right, and recognize that you’re wrong.

David H. Gans: I mean so I wouldn’t — I’m not sure I would go that — I think and this is something that you see across — I think almost every member of the Supreme Court, everyone recognizes that Texan history is an important consideration, and I think there’s some I think among progressives who say, well, we should reject originalism sort of root and branch.

And I think that’s not the answer, the answer is taking the Constitution’s Texan history seriously across the board and grappling with the lessons of that history, and I think part of the problem is when we’re talking about sort of originalism on the Supreme Court today, you’re having conservative justices who were not doing that, who were cherry-picking the history and who are engaging in an original analysis in a selective way when they think it suits them and turning a blind eye to it when they don’t think it suits them.

And that’s if you’re going to be an originalist, you should look at it across the board. You shouldn’t sort of say, well, I like this history, so I’m going to use it, but in another case, if it cuts against where I want the law to go, I’m going to ignore it. That’s sort of the unprincipled nature of selective originalism and that’s what we often see.

Another way you can sort of see that last year at the Supreme Court we heard all these cases that were about, we need to look at sort of historical practices and that’s really important for how we interpret the Constitution. So in the Second Amendment case, where the court gave a very sweeping interpretation of the Second Amendment, they said, well, the only justifications are, if you can point to a history of gun regulation in the past, that is sufficiently analogous to the law that is being challenged in court, and it sort of looked at the history, and the dissent said, well, there are 700 years of a historical tradition and the majority sort of cherry-picked every example, and said, no, that example is not good enough, that example is not good enough but you can look and you look at this term, the Supreme Court just heard a really important case called 303 Creative which is a First Amendment challenge to public accommodation laws which are very deeply rooted in history. We’ve had public accommodation laws for over a century and there was almost no focus on the fact that these kinds of enactments have this long history instead, the conservative supermajority was sort of pushing to say there’s a First Amendment license to discriminate for the maker of a wedding website who didn’t want to serve a same-sex couple, and history and tradition, which last term we heard so much about seem to get no play at all.

So that again kind of points out the same standards aren’t being applied across the board. We have some cases where the court looks at history and then there are others where there’s powerful history but the courts simply doesn’t look at it.

J. Craig Williams: What does that do to the value of those opinions? I mean, we’d look back at over time, as we’ve gone through the analysis of Constitutional Law, and we’ve seen some pretty bad opinions. How are these kind of selective originalism cases going to hold up over time?

David H. Gans: I mean many of them — I think very badly, I mean, so you can look at cases from the Roberts Court. I always think of sort of Shelby County v. Holder which, is the first major Roberts Court opinion that gutted the Voting Rights Act that struck down kind of its — one of its most key provisions and ignored.

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What is pretty clear from the text and history of the 15th Amendment that congress was to have very broad power to enforce the guarantee of racial equality at the polls, and the court kind of made up this theory that all states have to be treated the same and that Congress couldn’t take into account a long history of racial discrimination in voting by certain states, really ignoring as Justice Ginsburg made clear in a powerful dissent that the constitution had kind of given congress sort of broad tools to ensure a multiracial democracy, and this guarantee this requirements that the court annulled, which was known as the preclearance requirement had been critical to sort of restoring a multiracial democracy after no decades and decades of States flouting the constitution.

So I think, you can look at some of the cases that the Robert’s court has decided and you see many cases where the court simply has not given due to the constitution’s text and history, and I think you can also look at a case like Dobbs from last term and again, if you’re going to be an originalist, you should at least talk about the text and history of the part of the constitution that is under review. And, one of the striking things about Justice Alito’s opinion in Dobbs and something I did a lot of writing about us here and I talk about it in the Atlantic piece you mentioned, which is that if you look at Alito spends almost — says, almost nothing about the 14th amendment. He spends a lot of time to sort of saying, well what were states doing in 1868 when the 14th Amendment was added to the constitution.

But he doesn’t look at — one of the reasons that we have, the 14th Amendment is horrible suppression of fundamental rights both during slavery and then in the wake of the civil war and the point of the 14th Amendment was to guarantee to these fundamental rights. And many of the most horrible abuses of slavery were taking away rights that are not listed in the Bill of Rights, but slavery itself was sort of the antithesis of bodily integrity, you had denials of the right to marry, you had slaves forced to bear children who would then become another generation that would be held in bondage. So, many of these fundamental rights, the Right to Marry, the Right to have a Family, the right to control one’s body are very deeply rooted in the 14th Amendment history, but Alito doesn’t really look at that all instead, he looks at the fact that the 14th Amendment talks about liberty and he says, well, like that’s, that could mean anything.

So, he says, we have to make it mean — we have to look at what were States doing, you know but the problem is States were criminalizing marriages between interracial couples. You know, the point of the 14th Amendment was to say for years states have been violating fundamental rights and we’re going to change — we are going to make a break from that system where states had the power to violate individual rights and guaranteeing fundamental rights including rights that are not specifically listed in the Bill of Rights was kind of a key part of the 14th Amendment and Alito just doesn’t discuss any of that. And I think when you look at that opinion it simply has – it sort of purports to be originalist, but it does so by saying, “oh, we’re going to look not at the text and history of the constitution, we are going to look at what States were doing and that was the same argument that was made after — in by the defenders of school segregation and brown. They said, “look, the 14th Amendment allows us is this school, segregation was legal at the time of the 14th Amendment and brown rejected that argument in Loving versus Virginia, the Supreme Court rejected the idea that the fact that there were bans on interracial marriage of the time of the 14th Amendment made those constitutional. And so, Alito’s method by saying, “don’t look to the constitution’s history that meant to protect fundamental rights, look at what states were doing in 1868 is a sort of formula for saying many of our most cherished rights aren’t rights at all.”

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And so, there’s something very sort of deeply wrong from an originalist perspective with pursuing that argument.

J. Craig Williams: But David, it’s time to take another quick break to hear a word from our sponsors will be right back.

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And welcome back to the lawyer to lawyer. I’m back with David Gans. We’ve been discussing originalism. It seems as if you would take the Rehnquist Courts originalist view and apply them to current day Robert’s court. The two of them really don’t hold up well together, do they?

David H. Gans: I think the Rehnquist and Robert’s Court is very different. There are Rehnquist Court opinions that we could talk about here as well. I mean, I think it makes sense to focus on the here and now, what we’re seeing is a course that sort of says, it’s originalist that kind of spreads this message that text and history is what counts. But you know when you look closely the rulings that are coming out don’t bear that out. Instead you know what we see is a deeply conservative court that cherry-picks the history to reach conservative results manipulates the constitution that sometimes looks of history when it supports the result, they want to reach and other times turns a blind eye to it.

J. Craig Williams: What is the antithesis? What’s the antonym to originalism?

David H. Gans: The debates have always been kind of over originalism on the one hand and living constitutionalism on the other, which would be the view that the constitution sort of evolved over time. The difficulty is if you say if you’re not bound by the constitution section history that that can support. So, you have and often I think what you have today is kind of a conservative living constitution, where corporations have the same rights as we the people there a textual limit on the power of government to protect civil rights. We haven’t even talked about conservative efforts to undermine the administrative state. All which are propelled by kind of made-up doctrines that don’t have any roots in the constitution’s text and history. So, I think, I don’t think the answer is to sort of say we should jettison originalism, but we should take the constitution’s text and history, seriously and apply it across the board and if you do that, strongly favors progressive results.

J. Craig Williams: Well, it makes sense. Well, David looks like we just about reached the end of our program. So, I’d like to take this opportunity to invite you to share your final thoughts and highlight, where we can find you on the Constitutional Accountability Center?

David H. Gans: Sure, I’ll sort of end with I think this important point, which is that a lot of what you read about the Supreme Court today is that this is an originalist court. And I think it’s important to sort of reject that premise.  It’s not an originalist court it’s a court that manipulates the constitution’s, cherry-picks history to produce conservative results. It’s not a court that fairly and honestly looks at the constitution’s text and history and follows it where it leads. It’s critical to understand that when the court is issuing, sweeping opinions that moves law to the right, it is doing so to produce conservative results. It’s not simply following what the constitution says.

J. Craig Williams: David where can we find the Constitutional Accountability Center?

David H. Gans: The work of the Constitutional Accountability Center can be found at www.usconstitution.org. I am on Twitter at myhandlist@davidhgans.

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J. Craig Williams: Great. And it’s G-A-N-S, right?

David H. Gans: G-A-N-S, yes.

J. Craig Williams: Wonderful. Well, as we wrap up here, I’d like to thank our guest, David Gans, he’s the Director of Human Rights, Civil Rights and Citizenship Program at the Accountability Center. It’s been a real pleasure having you on the show David, thank you.

David H. Gans: Thank you so much Craig, I enjoyed it.

J. Craig Williams: Well, David certainly got an opinion somewhat like mine from the standpoint that originalism is kind of warped interpretation of the constitution. But in reality, it’s the methodology, that’s the problem. It’s not necessarily, while it is an issue. It’s not necessarily from a constitutional analysis standpoint, the real problem here is that we have justices that are attempting to justify and the end by distorting the means to get there and that is not an appropriate method of interpreting the constitution. I don’t think these cases are going to stand the test of time. I’m disappointed in a lot of ways, that the ways cases that were overturned last year, but I’ll return with little disregard for president. And I’m very concerned that we have a supreme court that’s gone rogue, now those are probably severe opinions for some, but you’ve been on if you’re a regular listener on this show, you know that the constitution has itself defined how it needs to be interpreted and the justices now that are not interpreting in that way really need to get some long hard thought to the consequences in the long-term societal influences that they’re changing as a result of warped interpretation.

Well, then, with that lovely thought, let’s turn to happier times and wish you all happy Hanukkah, Happy Kwanzaa, Happy Christmas, happy holidays. And more importantly, happy New Year, because hopefully will turn a leaf and enjoy what’s coming down the pike for this next year.  Please join us for our new environmental series that will start in January and run through the remainder of the year covering environmental laws, toxic contamination and other problems that we’re having in our society. You can also visit us at the Legal Talk Network, where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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