Ketanji Brown Jackson called herself an ‘originalist.’ The term is officially meaningless. - The Washington Post

Ketanji Brown Jackson called herself an ‘originalist.’ The term is officially meaningless. - The Washington Post

by Conor Casey and Adrian Vermeule

In her 2010 confirmation hearing, Justice Elena Kagan famously quipped that “we are all originalists” while affirming her close adherence to constitutional text and structure. Judges, said Kagan, ought to take seriously and apply “what they [the framers] say, what they meant to do.” And this week, quite remarkably, President Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, told senators that her judicial philosophy centered on adhering to the text of the Constitution at the “time of the founding and what the meaning was then,” looking for the “original public meaning,” and trying to determine what the text “meant to those who drafted it.” Jackson’s statements were immediately heralded by liberal and conservative legal commentators alike as a victory for originalism and a compelling example of its dominance as the leading theory of constitutional interpretation in the United States.

But if this is a victory for originalism, it is a Pyrrhic victory of epic proportions. If and when most judicial nominees, liberal and conservative, Democratic and Republican, assent to some form of originalism, it will come at a steep price for originalists: Their method will be shown to do nothing at all, save, perhaps, providing a jargon in which to rationalize decisions reached on other grounds. It will become clear — even as the justices resolutely deny it — that all the real work, in hard cases of constitutional interpretation, is done by implicit or explicit commitments of political morality. Moreover, the Pyrrhic victory for originalism will be a defeat for the nation at large, diminishing transparency about the real grounds of judicial decisions and exacerbating cynicism about constitutional law.

Originalism’s early proponents — including Edwin Meese III, Judge Robert Bork and Justice Antonin Scalia — fought for it under the banner of curbing judicial discretion and promoting goods like the rule of law, democracy and popular sovereignty. Originalism promised to do all this by ensuring judges could not de facto amend the Constitution by changing the meaning of text through interpretation; its meaning would not change with every personnel shift on the court. Instead, judges were to find the original meaning fixed at the time the constitutional text was ratified and apply it to current legal disputes, and not rely on considerations of morality to aid their interpretation. In a famous 1989 law-review article, Scalia argued that originalism’s main virtue was that it helped judges avoid the “main danger in judicial interpretation of the Constitution” — that is, mistaking “their own predilections for the law.”