I once debated Justice Scalia. He would not call it a debate, and no doubt he remembered nothing of it. But I was a bright-eyed and bushy-tailed law student, and I got to challenge him with a couple of questions. The whole thing lasted about 30 seconds. Scalia didn’t like it one bit.
The setting was one Scalia knew and loved: we were in a lavishly, if archaically, adorned meeting room in the Supreme Court building. My professor (of Comparative Japanese/US Legal Systems, of all things) was an old pal of Scalia’s. Every year my professor arranged a field trip to the Supreme Court to watch an oral argument and meet the august Scalia (note: I went to law school at Georgetown in Washington DC).
I was beyond thrilled. I knew Scalia was conservative. I also knew his fundamental judicial philosophy was to look back at the Constitution to see if a law, or a right being preserved or bolstered by a law, was worthy of existence (I did not yet know that the philosophy was called “originalism” and he was its godfather). I was interested in drug policy back then, so I read some of Scalia’s decisions regarding marijuana prohibition (now known as cannabis in policy circles) and it confused me: there is nothing about prohibiting cannabis in the Constitution, so what gives?
I pointed out that if a law is constitutional only when it deals with a matter specifically discussed in the Constitution, then how is the law prohibiting cannabis constitutional? Scalia shot back, “there has never been any doubt about Congress’ right to prohibit drugs,” his eyes moving along to the next raised hand.
What he was really saying, though, is that he believed drugs should be prohibited, so he was unwilling to consider any path of reasoning that led to a conclusion that drugs should not be prohibited.
My exchange with Scalia captures the fundamental problem with “originalism”—it is a philosophical house of cards. Scalia, like all the other justices who espouse originalism, already know what result they want to reach. They simply use the pretext of looking for a reference—to the subject of a law or right—in the Constitution as a way to get there.
A case in point is Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization. It’s no secret that Alito is anti-abortion. And it’s no secret that Justices Gorsuch, Kavanaugh, Roberts, and Barrett are too. When Barrett was confirmed, every liberal in America knew Roe v. Wade would be overturned (even if we fervently hoped SCOTUS would find a way to wiggle out of the conundrum of having at least two, and probably three, justices specifically vetted and appointed based on their anti-abortion views). The problem is SCOTUS continues to insult our intelligence by pretending that its decision to take away a right—that millions of women in this country have never lived without—is based on unerring reason.
The loose card that takes the whole house down is the idea that every law granting, preserving, or expanding a right must have been specifically referenced in the Constitution or deeply rooted in this nation’s history and traditions. It doesn’t require a law degree to see that both men and women in modern society have grown used to a bunch of rights that are not referenced in the Constitution at all and were historically deeply denied in this nation. The most obvious examples are the rights of black Americans to vote, have access to education, and be permitted to move about the country as free people rather than slaves. Other examples are the rights to interracial and homosexual marriage. These things are not only not mentioned in the Constitution, but our “history and tradition” was to deny these rights until SCOTUS declared them to be constitutionally guaranteed.
You know what else is not referenced in the Constitution or deeply rooted in the nation’s history and tradition? SCOTUS’ power to judicially review laws. That power was granted—by the SCOTUS of 1803 to itself forever—in Marbury v. Madison. Judicial review is why SCOTUS can strike down laws dealing with voting (which is referenced in the Constitution), campaign finance, gun control (SCOTUS is poised to strike down New York’s hundred-year-old law restricting gun ownership this year), health care, etc. If we take originalism to its logical conclusion, then SCOTUS should stop reviewing, and reversing, these laws at all.
The truth is SCOTUS points to originalism when it serves to bolster the conservative justices’ moral points of view. It’s a philosophy that is well suited to conservative values, which are premised on preserving the status quo or returning to a fantastical past—like one where the States engaged in balanced policymaking with respect to abortion. When the logic of originalism would lead to the opposite conclusion—like finding no authority to prohibit drugs—these same conservative justices will dismiss the argument with a flick of the hand.
The justices’ moral motivation in Dobbs is so transparent. And Alito’s reliance on principles of originalism is so intellectually dishonest, and his reasoning so flimsy (he cites to an 18th century source known for accusing women of witchcraft?!) that not only is the argument for taking away a 50-year-old right collapsing under the weight of obvious contradictions, the legitimacy of SCOTUS has been blown down as well. By SCOTUS itself.
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