President Donald Trump’s victory this past November likely rested at least in part on his pledge to fill the U.S. Supreme Court vacancy created by Justice Antonin Scalia’s death with an originalist jurist in Scalia’s mold. Justice Neil Gorsuch, who took the bench in April, has been widely presumed to be just such a pick.
But two recent scholarly articles by Jamal Greene, the Dwight Professor of Law at Columbia Law School, suggest that the impact of Gorsuch’s presumed originalism on the Court’s reasoning is likely to be modest. Indeed, Greene’s writings suggest, even the impact that Scalia himself was able to achieve, in imposing any kind of originalist stamp on the Court’s jurisprudence, has been greatly “overstated.” (Originalists argue that constitutional provisions should be interpreted the way a reasonable reader would have understood them at the time they were drafted or ratified.)
The heart of the problem, Greene believes, are the structural constraints that every Supreme Court justice grapples with, and which tend to frustrate attempts at methodological purity.
“One can develop a theory of originalism,” explains Greene in an interview, “but on first contact with actual cases, actual facts, an actual set of precedents, and colleagues who disagree with you about that approach, you have to relent or you’re going to have no influence.” He notes that Justice Clarence Thomas—the only other originalist on the Court, and one who has been more “unwavering” in his commitment to that doctrine than Scalia was—has “not really written significant constitutional opinions.”
‘Did Scalia Throw Away His Shot?’
In a 41-page essay titled “Age of Scalia” published last fall in the Harvard Law Review, Greene not only questioned whether Scalia’s originalist teachings “will endure past his death,” but whether they “succeeded even in Scalia’s own time.” Greene asked, provocatively, “For all the talk of his titanic influence, did Scalia throw away his shot?”
“Originalism has played little or no role,” his essay asserted, “in the Court’s affirmative action, sex discrimination, abortion rights, takings, free speech, [death penalty], or Commerce Clause cases during Justice Scalia’s tenure.”
And the Court’s key gay rights rulings, which “provide an apt set of bookends to Justice Scalia’s career,” clinch the point, his essay argued. Greene is referring to the dizzying turnaround that occurred between the Court’s ruling in Bowers v. Hardwick in 1986 (decided one week after Scalia was nominated to the Court) and Obergefell v. Hodges in 2015 (handed down nine months before Scalia’s death). In Bowers, following an originalist analysis, the Court upheld a law criminalizing consensual sodomy, while in Obergefell, invoking a diametrically opposite interpretive approach, it recognized a constitutional right of same-sex couples to marry.
The latter ruling, written by Justice Anthony Kennedy, could not have offered a more direct rebuke to originalist thinking, Greene points out: “The generations that wrote and ratified the Bill of Rights and the 14th Amendment,” Kennedy wrote, “did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
‘Sometimes We’re All Originalists’
Greene offers additional insights into why Gorsuch’s originalism may not make much practical difference in the second article he published last fall, “Rules Originalism,” which ran in the Columbia Law Review. There, Greene strove to “sidestep” ideological debates, he explains, and simply to look, empirically, at when the Court has actually used originalist analysis and when it hasn’t.
The answer, he concluded, correlates with the type of constitutional provision being interpreted. Highly specific provisions—for instance, the one laying out the president’s power to make recess appointments—tend to be interpreted using originalist analysis. In contrast, broader provisions—like those guaranteeing due process, equal protection, and free speech”—usually aren’t. This pattern is true, he found, regardless of the ideological bent of the justices.
“Sometimes we’re all originalists, and sometimes none of us are,” says Greene, encapsulating his findings.
For all these reasons, whether Gorsuch is an originalist or not may have limited practical import.
“‘I’m an originalist’ tells you very little,” he explained.
Greene, who teaches constitutional law, grew up in Brooklyn, the son of two academics. His father is an administrator at Adelphi University in Garden City, New York, and his mother is an English professor at City University’s Medgar Evers College in Brooklyn. Between Harvard College and Yale Law School, Greene spent three years as a reporter for Sports Illustrated. He is a Yankees fan, he says—as was Scalia.
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Posted on June 8, 2017