Why the Supreme Court’s ‘originalists’ fail to understand their own judicial philosophy: journalist

Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, the U.S. Supreme Court is more dogmatically far-right than it has been in generations — a far-right majority that, on Friday, June 24, announced it had overturned Roe v. Wade with its ruling in Dobbs v. Jackson Women’s Health Organization.

The day before that, in the case New York State Rifle & Pistol Association v. Bruen, the High Court announced that it had struck down, 6-3, the “proper cause” element of a New York State gun control law that had been on the books since 1911.

In both Dobbs and New York State, a right-wing judicial philosophy known as “originalism” played a major role in the outcome. Journalist Joshua Zeitz, in a think piece published by Politico on June 26, explains why originalism, as practiced by the U.S. Supreme Court in 2022, is deeply flawed.

“This week, what was once a fringe intellectual concept, confined to conservative legal circles, achieved its ultimate ascendance,” Zeitz explains. “In a decision that purports to rely on deep historic knowledge of the founding generation’s views on gun control, the conservative majority on the Supreme Court knocked down a New York State law limiting the concealed carry of firearms. Drafted by Justice Clarence Thomas, the decision applies a strict originalist frame to conclude that ‘only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.’”

But Thomas’ originalist view in New York State, according to Zeitz, gets “history wrong.”

“There is ample reason to disagree with originalism as a legal philosophy,” Zeitz explains. “Should a 21st Century society really interpret its Constitution by the standards of 1787 — an era before the introduction of semi-automatic weaponry, steam power, penicillin, automobiles, trains, electric lights and indoor plumbing? In some ways, though, that’s a pointless debate at the moment. With originalists holding six of the Supreme Court’s nine seats, we’re all living in an originalist world.”

Zeitz continues, “The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess. It’s difficult to become an expert in American political, legal or social history. It’s quite easy, though, to cherry-pick historical examples that prop up an end in search of a rationale — which is precisely what the Supreme Court majority did this week, twice.”

Originalists, Zeitz notes, interpret the 2^nd Amendment to the U.S. Constitution to mean that any type of gun control is unconstitutional. But during the “Early Republic,” he adds, firearms were regulated according to the technology of the time.

According to Zeitz, “By originalism’s own, tenuous standards, the right of states to constrict individual gun ownership is as American as apple pie…. There is no historical basis for a constitutional standard that denies New York or New Jersey the ability to restrict individual gun ownership.”

Zeitz wraps up his think piece by stressing that many jurists who fancy themselves “originalists” lack an adequate understanding of U.S. history.

“The broader problem is that originalism essentially requires judges and their law clerks to earn a Ph.D. in American — and probably, as well, early modern English — history,” Zeitz explains. “A legal theory constructed on historical foundations doesn’t work if jurists aren’t well-versed in history. Otherwise, originalism becomes an unserious game of cherry-picking examples — a political outcome in search of a supporting argument.”