Every summer, the Supreme Court hands down its most consequential rulings, and every summer, the conservative majority assures us that whatever it decided was compelled by history and the original meaning of the Constitution, and not partisan preferences. This most recent term was no different, except for one thing: The justices have never been less convincing.
Make no mistake, originalism has always been a sham—and always applied selectively in the pursuit of reactionary ends—but this term’s opinions put on display a methodology that’s in crisis, unworkable even for the justices who claim to be its most ardent proponents.
Let’s start with Trump v. Slaughter, which dismantled the century-long practice of Congress restricting the president’s power to fire the heads of certain agencies. The ruling had been a longtime goal of the right-wing legal movement, but standing in its way was not only decades of precedent but also some inconveniently conclusive evidence from the Founders themselves.
Take a line from Federalist, Number 77, where Alexander Hamilton noted the Senate’s consent would be required “to displace as well as to appoint an officer,” so as to prevent the president from becoming “the sole disposer of offices.” When it comes to founding-era evidence, it’s hard to get better than that—the most forceful and influential advocate for a strong executive among the founding generation answering your question directly on point.
The conservative majority’s response? To call this a “passing comment,” bizarrely suggesting the word “displace” doesn’t necessarily mean “remove,” and instead demanding that we consult the “logic of The Federalist as a whole.” It’s one thing to completely ignore inconvenient evidence in pursuit of a sought-after goal; surely we’ve seen that move employed before. It’s another for this group of jurists, who so dogmatically scold those who diverge even slightly from the historical record, to so brazenly toss aside the plain meaning of words spoken directly by one of the Founders themselves in the name of “logic as a whole.”
Still, that alone would be a fine, if familiar, example of conservatives editing the record to achieve their predetermined outcome. But it’s in Barbara v. Trump, the ruling that blocked President Trump’s abominable effort to eviscerate birthright citizenship, where things take another turn.
The majority in Barbara is an unlikely pairing of the liberal justices with two conservatives, so the result provides a unique window into the unstable nature of the right’s methodology. Justice Brett Kavanaugh concurred in the judgment, but wrote separately to state that the constitutional definition of birthright citizenship is not set in stone, and opened the door for Congress to create “exceptions” to birthright citizenship “recognized based on new developments after 1868.”
“Exceptions”? “New developments”? You might be wondering where this guy was when gun rights activists questioned the logic of blocking assault rifle restrictions based on words written centuries before those weapons existed, or when reproductive rights activists asked whether eighteenth-century history should govern modern medical procedures. You’re right to be confused. It’s people like Kavanaugh who laugh progressives out of the room for suggesting that two people separated by two centuries might read the same words differently.
Archconservative Justice Samuel Alito, in dissent, takes things even further, developing a citizenship test so strict that virtually all children born to foreign parents would fail. But recognizing how absurd this result will be, Alito just stops his historical inquiry right there, developing an exception out of thin air for parents who have “done everything within their power … to become American.”
In response, a fellow originalist, Chief Justice John Roberts, scolds Alito for creating this “ad hoc exception,” simply because he cannot “stomach” the result of his supposedly historical exercise. Alito, he writes, “does not explain how that exception can be squared with his view of the text.” As for Kavanaugh, Roberts writes that his willy-nilly reasoning is “at war with his supposedly unifying principle of the Clause.”
If this seems like a mess, it is. And that’s the tell. Originalism was never marketed to the public as just one interpretive tool among many. It was marketed as a discipline, the thing that would keep judges from substituting their own values for the Constitution’s plain original meaning. But here we are, answering some of the most momentous constitutional questions ever posed to this nation’s high court, and the method that promised to provide clarity and stability is instead producing some of the more incoherent, nonsensical gobbledygook ever published.
Indeed, a method that can’t generate internal agreement among its own adherents—let alone a coherent logic behind its conclusions—is not a method at all. It’s just a vocabulary. What was once sold as a mission to develop clear, consistent, stable jurisprudence has instead rendered constitutional law in this country a foolish and exhausting exercise, completely divorced from logic, philosophy, or common sense; a petty game of jurisprudential grab bag to determine who has the best quote from an eighteenth-century slave owner.
None of this is an argument that the justices are reasoning badly, exactly. Every judge, on every court, has always had to decide which evidence matters and which doesn’t. That is simply what judging is. Even Antonin Scalia, the godfather of originalism, reserved the right to set aside historical evidence when the results struck him as too absurd to accept, famously noting that “I’m an originalist and a textualist, not a nut.”
It was a tell even then—an admission that the method bends whenever it has to. But the scandal was never the bending. It was the pretense that a stable, principled method existed at all, one capable of producing consistent results regardless of who was applying it. Slaughter and Barbara show that even the people who invented that pretense can no longer keep it up among themselves. It might be time for the rest of us to stop pretending as well.
