Justice Jackson and the power of originalism

This might sound like a theoretical legal sideshow — but it’s just the opposite. Jackson’s unexpected deference to the doctrine of originalism reflects how much American jurisprudence has transformed in the past 40 years and foreshadows how coming battles over privacy, criminal justice and women’s rights might turn on the original public meanings of words that appear in the Constitution.

Jackson didn’t need to stake out this ground. She could have been confirmed to the high court with only Democratic support. But her comments reflect a recognition among liberals that they need to speak the language of conservatives on the court if they are to achieve more of their desired outcomes during the coming years in the legal wilderness. As Justice Elena Kagan quipped during her 2010 hearing, “We’re all originalists now.”

Originalism emerged during the Reagan era as part of a conservative counterstrike on Warren and Burger court decisions, from Miranda to Roe, cases which had expanded a variety of individual rights and government powers. Republicans then filled the courts with originalists and textualists who said they were hewing to the original intentions of the Founders when it came to balancing interests and writing opinions. Over time, the emphasis shifted from emphasizing the original intent of the founders to emphasizing the original meanings of the words they used.

Another factor driving this shift is that liberal legal theorists have come to understand that originalism need not always lead to conservative outcomes. The majority and minority opinions in the 2008 Heller decision, which established an individual right to possess firearms, leaned heavily on evidence about what the language in the Second Amendment meant to people when the Bill of Rights was ratified two centuries earlier. Most of the historical evidence is actually stronger in John Paul Stevens’s dissent than Scalia’s controlling opinion, but the conservatives controlled the votes and carried the day.

Many conservative jurists who claim to be originalists have, at the same time, been happy to depart from the theory when they want to proceed in a non-originalist direction. For example, the Founders didn’t see corporations as people the way modern conservatives do. But the Roberts Court has granted corporations extraordinary rights and privileges. Conversely, there is overwhelming evidence that the early Congresses envisioned significant delegation of authority to the executive branch when it came to implementing laws, though that vision is not shared by modern-day conservatives.

Originalism has already changed the way the high court operates. In their arguments and briefs, advocates across the ideological spectrum often cherry pick historical definitions of words most helpful to the outcome they prefer. That’s often easy because the Founders tended to be either deliberately ambiguous in their own wording or they themselves were divided about the meaning of what they were writing. The Constitution, after all, was forged through compromises.

Interest groups that once tailored arguments toward Anthony M. Kennedy, a Reagan appointee who was for years a swing vote on the court, now build textual arguments to try to win over conservatives such as Neil M. Gorsuch. There have been indications that this might work from time to time. In 2020, Gorsuch upset conservatives by holding that a 1964 law prohibiting discrimination on the basis of sex also covers sexual orientation and gender identity.

Where will Justice Jackson fit on the originalist spectrum? It will be some time before we know. Replying to sometimes insulting questions from senators, Jackson rejected any claim that the Constitution is illegitimate because many of its authors owned enslaved people. She insisted that she’s never questioned the validity of any provision in the founding charter. “I love our country and the Constitution,” Jackson said.

Jackson’s reverence for the Founders is a refreshing corrective to the unnerving progressive impulse to “cancel” the brilliant, if flawed, architects of our republic. New York removed a statue of Thomas Jefferson from city hall in November. San Francisco voters overwhelmingly recalled three school board members in February who had voted to change the names of 44 public schools, including two named after Jefferson and James Monroe.

In the Jackson hearing, a different vibe prevailed. During his wife’s testimony, Jackson’s husband, Patrick, wore socks emblazoned with, among other American icons, Jefferson’s face. As Kagan noted, we’re all originalists now.