Law

Scalia's Replacement Won't Be Quite So Originalist

The next generation on the Supreme Court won't be bound as tightly to the past.

One of a kind.

Photographer: Jewel Samad/Getty Images

President Donald Trump’s Supreme Court nominee, judging from the list of top contenders, will praise Justice Antonin Scalia and say he’s an originalist in the same vein. But will it be true? Or will the nominee be more like Justice Samuel Alito, a dyed-in-the-wool conservative who nominally adheres to originalism but doesn’t actually seem to decide many cases after a detailed examination of the origins of the Constitution?

The difference may not matter in how the nominee will vote. But it does matter for the long-term development of constitutional doctrine -- and whether we continue to have justices who would bind us to the dead hand of the past rather than viewing the Constitution as Justice Oliver Wendell Holmes did: as a living, breathing organism that must evolve or die.

QuickTake U.S. Supreme Court

A year ago, shortly after his death, I argued that Scalia could be the last originalist. Justice Clarence Thomas keeps the faith, I pointed out. But the court’s other conservatives don’t provide the same intellectual defense of originalism. Nor do they show a sustained commitment to treating cases historically rather than doctrinally.

Chief Justice John Roberts is deeply committed to judicial restraint, which can be inconsistent with originalism when the original meaning could be used to upend decades of precedent. And Alito, though more willing to be a judicial activist, writes opinions driven by philosophical or ideological conservatism rather than history.

It seems highly probable that Trump’s appointee will be more like the younger generation of conservatives than like Scalia or Thomas. None of the judges said to be at the top of Trump’s list is known for writing opinions that consider deep originalist history. Appeals court judges don’t have too many chances to do that, of course. But Trump’s potential nominees also haven’t made a big deal of their originalism in their non-judicial lives, either.

Start with Judge Neil Gorsuch, the intellectual of the group. (For the record, I predicted in November that Gorsuch would be the nominee.) Gorsuch has a written record in the form of a serious book on assisted suicide and euthanasia, published by Princeton University Press.

It’s noteworthy that Gorsuch published the book in 2006, when he was taking a break from private practice to work in the George W. Bush Justice Department. It’s derived from his doctoral dissertation, written almost 20 years earlier. The decision to publish was the conscious act of a fully adult lawyer who must have known he had a good chance at a federal judgeship. Gorsuch understood that the book would be read if he were up for confirmation in the future.

The work is undoubtedly conservative, with its arguments against legalizing assisted suicide and euthanasia. But it’s not particularly originalist.

Gorsuch included a whole chapter on the history of legal ideas about suicide, from early Christianity through Thomas Jefferson’s more moderate views to the present. But he made little effort, for example, to mount an argument about what the Founders or the drafters of the 14th Amendment thought about whether the right to due process included a fundamental autonomy right that might extend to ending a life. At one point in his even-handed analysis, Gorsuch wrote that the “history test” “carries with it a host of unanswered methodological questions.” And he spent most of the book engaging (and refuting) moral and political arguments for the practice.

The point isn’t that Gorsuch would be open to reading the due process clause broadly, any more than Alito. He’s clearly against that in the case of assisted suicide. It’s that the Framers don’t figure largely in argument.

Judges William Pryor and Thomas Hardiman don’t have the same extensive written record. But they don’t seem to be full-blown Scalia-style warriors for originalism either. As attorney general of Alabama, Pryor made sure state Chief Justice Roy Moore was kicked out of office for defying a federal court order to remove a 5,200 pound granite statue of the Ten Commandments from in front of his courthouse.

That was undeniably the legally correct decision, and Pryor deserves praise for it. But he could also have refused on the ground that Moore’s action, though unlawful, didn’t violate the original meaning of the establishment clause -- which would have been true. Pryor didn’t. He emphasized his willingness to prosecute Moore even though he had believed previously that the display was constitutional.

Of course Pryor is an originalist, and has spoken in favor of Scalia’s originalism at appropriate gatherings of legal conservatives. He’s a deeply conservative protege of Trump’s attorney general nominee Jeff Sessions. But he doesn’t seem likely to refer to original historical meanings the way Scalia did. He’s more likely to follow the conservative line.

Hardiman is more of an enigma. We do know that he’s the author of an opinion on gun rights in which he used historical materials of the kind deployed in Scalia’s opinions in McDonald v. City of Chicago and District of Columbia v. Heller. Hardiman actually found that 18th-century state constitutions restricted the right to bear arms for people who were perceived as posing future danger, which led him to uphold the anti-gun regulation challenged in the case. His originalism thus led him to a “liberal” conclusion. And the Supreme Court had more or less dictated the use of originalism in gun-rights cases.

Trump’s nominee will be a conservative originalist, to be sure. But he likely will not be someone who makes originalism his life’s work. And from the standpoint of jurisprudence, that’s a good thing in the long run.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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