Judges in most advanced democracies would argue that all laws are inevitably interpreted based on a mix of original understanding, evolving societal standards and core democratic values. And even in the United States, liberals and conservatives alike accept important deviations from originalism. Otherwise we would still have segregated schools, prohibitions against interracial marriage and laws outlawing homosexuality — all of which were deemed unconstitutional by judges who used the 14th Amendment of the Constitution to do so, even though it cannot be plausibly claimed that was the intent of Congress when it passed that amendment.
Many conservatives have argued that originalism is the only way to ensure that judges stay restrained and modest, not imposing their views on a society that did not elect them. (Chief Justice John G. Roberts Jr. refers to this as calling “balls and strikes.”) And perhaps the self-styled originalists would accomplish their goal if they actually practiced what they preach. But in fact, the new breed of judicial activists seems to be abandoning the restraint that Roberts prizes and is simply seeking conservative outcomes, using whatever means necessary.
The original sin was the 2000 Supreme Court Bush v. Gore decision, when conservative justices flagrantly violated their long-espoused principles to achieve their preferred political aim. The Constitution is crystal clear that states have final authority over the selection of their electors during a presidential election. Courts had long upheld that view.
And yet, in Bush v. Gore, the Supreme Court shut down Florida’s recount using a tortuous and novel interpretation of the 14th Amendment, which was ratified to give equal rights to Black people in 1868. The writers of that amendment could not possibly have meant that it prohibited different counties within a state from using their own approaches to counting ballots in an election — an utterly unrelated issue and something that was widespread in 1868 when the amendment was passed.
In a brilliant podcast, “Deep Background,” Harvard Law School professor Noah Feldman outlines this hypocrisy to Jeffrey Sutton, a federal appeals court judge who sees himself as a conservative originalist. Sutton’s response — to my ear — was that he believed Bush v. Gore had been wrongly decided.
And, in fact, after the ruling, judicial conservatives rarely cited or celebrated its rationale. Scalia’s response was usually three words: “Get over it” — not exactly an intellectual argument. Privately, according to Evan Thomas’s reporting, Scalia said he thought the decision was “a piece of s---.” In the most telling admission of its illogic, the majority opinion contains the remarkable guidance that the decision should be viewed as a one-off and not cited as a precedent — contrary to the intended function of Supreme Court rulings.
Feldman’s podcast series — which is well worth listening to — highlights a growing divide between conservatives who viewed originalism as part of a philosophy of modesty and restraint and new activists who are untroubled by the hypocrisy and simply seek conservative outcomes. It is these activists who have been able to weaken Obamacare (clearly violating the original intent of the legislature that passed it) and invent new rights for corporations that had never before been found in the Constitution (as they did in the notorious Citizens United case).
All this might come to a head next week. The Pennsylvania Supreme Court has ruled that ballots sent before the end of the election that arrive up to three days late should be counted. The Republican Party appealed the decision to the U.S. Supreme Court, which still had a vacancy and deadlocked 4 to 4, with the new conservatives plus justices Samuel A. Alito Jr. and Clarence Thomas expressing willingness to intervene, and the liberals, plus Roberts, acting as the voices of judicial restraint.
On Wednesday, if Trump is ahead in Pennsylvania, the Republicans will again ask the court to shut down the vote count. This time, the court cannot deadlock since there is now a ninth justice, Amy Coney Barrett. She will have to decide whether she actually believes in the ideas she and Scalia espoused — or whether, like her mentor, when the stakes are high, she will choose power over principle.