WASHINGTON — The seeds of the U.S. Supreme Court’s recent rulings on guns and abortion lie in the legal theories of a justice who died six years ago.
For decades before his 2016 death, Justice Antonin Scalia was the court’s champion of originalism, the approach to constitutional law that hews tightly to the founding fathers’ words. Once backed only by fellow Justice Clarence Thomas, Scalia’s vision now commands a majority on the court and is even invoked by the liberal justices.
But the embrace is raising new questions as to whether originalism is fulfilling Scalia’s pledge that it would keep judges from injecting their personal views into the law. As deployed by the current court, originalism includes a deep dive into American legal history, something critics say invites cherry-picking to reach a desired result. With abortion and guns, the court used centuries-old laws to justify its conclusions.
“They basically played into what a lot of non-originalists think is wrong about originalism — namely, that it’s just basically finding old cites to justify regressive and oppressive interpretations of the law,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. “But that’s not what originalism promised.”
Originalism’s core has always been the Constitution’s language. As Scalia described it in 2005, “Our manner of interpreting the Constitution is to begin with the text and to give that text the meaning that it bore when it was adopted by the people.”
To do anything else, in Scalia’s view, was to usurp the power of the people and distort democracy. “The only power that I have is to apply the Constitution,” Scalia said in 2012. “I was not given the power to amend the Constitution.”
His arguments inspired a movement that culminated with then-President Donald Trump’s appointment of three justices who self-identified at least to some degree as originalists. One, Justice Neil Gorsuch, even wrote a book largely dedicated to the subject.
‘Living Constitution’
It also left liberals reframing how they spoke. At their Senate confirmation hearings, the three current Democratic-appointed justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — all eschewed the phrase “living Constitution,” a decades-old description associated with a more flexible view of constitutional rights.
Kagan said at her 2010 hearing that “we are all originalists,” though she made clear that she didn’t see the doctrine as answering every constitutional question. Jackson went further in March, saying originalism had become the established method of constitutional analysis.
“The Supreme Court now very clearly has determined that in order to interpret provisions of the Constitution we look to the time of the founding and we ascertain based on what the original public meaning of the words of the Constitution were at the time,” Jackson testified.
But that “original public meaning” phrase doesn’t appear in the abortion and gun rulings — or for that matter in any majority opinion in the just-completed term. Although in each case the court invoked the Constitution’s language — noting, for example, that the document doesn’t mention abortion — the justices spent far more time engaged in historical analysis.
Middle Ages
With abortion, that meant going as far back as a 13th-century English common-law treatise that said it was homicide to cause an abortion “if the foetus be already formed and animated.” And it meant focusing on what Justice Samuel Alito’s majority opinion called the “most important historical fact” — the state of the law in 1868, when the Constitution’s 14th Amendment was adopted.
Alito said that in 1868 — a time when women couldn’t vote — three-quarters of the states made abortion a crime at least in the early stages. The 14th Amendment, which says states can’t deprive people of “life, liberty, or property, without due process of law,” had formed the basis of Roe v. Wade, the 1973 ruling that established abortion as a constitutional right.
“An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” Alito wrote.
Alito’s opinion relied heavily on a 1997 opinion that said the 14th Amendment doesn’t guarantee a right to assisted suicide. The decision, Washington v. Glucksberg, said the due process clause protects rights that are “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Cloak of history
History played an even more prominent role in the gun case. Writing for the majority, Thomas conducted a survey of American and English law dating as far back as 1328 and concluded that New York had failed to show “a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.”
Dissenting Justice Stephen Breyer faulted the majority for its “near-exclusive reliance” on history, saying it raised “a host of troubling questions.”
“Most importantly, will the court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” the now-retired Breyer wrote.
The court’s reasoning is leaving some scholars questioning whether it deserves the originalist label at all. Lawrence Solum, a University of Virginia School of Law professor who has written extensively on originalism, called the abortion opinion “classic living constitutionalism,” saying Alito relied on a number of non-textual factors, including history.
“And this pattern is followed by the court in many other decisions,” Solum said. “The last two terms, the big cases are almost all conservative living constitutionalist decisions.”
But Solum also said also said the outcomes in those cases “may very well have been influenced by originalism.”
Jennifer Mascott, a professor at George Mason University’s Scalia School of Law and former law clerk to Thomas, called the abortion ruling an “originalism-consistent opinion.” Alito’s discussion of history was in part an effort to explain to the American public why Roe was such a deviation, she said.
“The history and tradition part maybe would have been handled differently if you were just writing a theoretically pure law review article,” she said.
Scalia, for his part, never said he was opposed to using history as a means of understanding what a provision originally meant. He did so extensively in concluding in a landmark 2008 ruling that the Second Amendment protects individual gun rights.
But Scalia also said the originalist answer to some constitutional questions didn’t require a lengthy trip into the past.
“It doesn’t take a whole lot of history,” he said in 2006, “to figure out that nobody thought that the Bill of Rights stopped a state from prohibiting abortion.”
