'Rigged, dishonest bunk': Why liberal lawyers should fight back against this 'fringe legal theory'

01 December 2022

As president, Donald Trump vowed to only nominate socially conservative Supreme Court justices who embraced an “originalist” philosophy of jurisprudence, pointing to Justice Clarence Thomas and the late Justice Antonin Scalia as the sort of justices he favored. Some right-wing Republican-appointed High Court justices, although fiscally conservative, turned out to be socially liberal when it came to issues like abortion and gay rights — for example, retired libertarian Justice Anthony Kennedy. Trump, however, wasn’t looking for the next Kennedy.

Trump was looking for the next Thomas or Scalia. And the three justices he appointed (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett) have been hailed by Fox News pundits as examples of “originalism” or “textualism” in action.

But one media figure who is highly critical of “originalist” or “textualist” ideology is Washington Post opinion columnist Ruth Marcus. In her December 1 column, Marcus slams “originalism” as painfully flawed and warns “liberal lawyers” against buying into it.

“Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap,” Marcus explains. “Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Not all of the conservative justices are committed originalists. I count four of the six — all but Chief Justice John G. Roberts, Jr. and perhaps Samuel A. Alito Jr., who describes himself as a ‘practical originalist.’ But they have all written or joined originalist rulings.”

Marcus continues, “Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the Court would be remiss not to make an originalist case. But there’s also little evidence, at least in the highest-profile cases, that it will do them much good.”

According to Marcus, “liberal lawyers” who try to use “originalist” arguments to make their case are not competing in a “fair fight” but rather, are up against “conservative justices” who will “cherry-pick competing originalist interpretations that comport with their underlying inclinations.”

“The more liberals present originalist arguments, the more they legitimate originalism rather than refuting it and offering a compelling alternative,” Marcus warns. “Courtroom advocates need to win the case at hand, yet that undermines the more critical long-term effort to wrench the Court away from its reliance on what is, at least as currently practiced, a flawed doctrine that peddles the illusion of impartiality in the service of a conservative result.”

Marcus continues, “Because originalism purports to freeze our understanding of the Constitution as written at the end of the 18th Century or amended in the second half of the 19th, it is skewed to a cramped reading of the document, unleavened by modern science and sensibilities. Why should we understand — much less accept — the constitutional meaning as fixed at a time when women lacked the right to vote, when recently enslaved Black people attended segregated schools, when the economy was agrarian, and when the notion of gay rights was unthinkable?”

Originalism, according to Marcus, was a “fringe legal theory” when it started to emerge in the early 1970s as a “reaction to the perceived excesses of the Warren Court.” And she urges “liberal” attorneys and judges to “push back” against originalism rather than pretending that a “flawed approach” has merit.

“Conviction, however sincere, does not make a flawed approach legitimate,” Marcus writes. “And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome. This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.”

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