WASHINGTON — Two years ago, conservative Justice Neil Gorsuch blasted his conservative colleagues for ignoring history and the original understanding of the law while ruling for Oklahoma in a dispute over Native American tribal authority.
The 5-4 ruling against the tribes was “as if by a priest, without any sense of history … and without any colorable legal authority,” Gorsuch wrote in his op-ed. different opinion.
His complaint echoes a chorus of criticism of the Supreme Court from lawyers on the left and right. judgment last week states do not have the power to disqualify former President Donald Trump from the presidential election.
To critics, this was another example of how conservative justices selectively applied a legal methodology known as originalism, which focuses on the original meaning of the law at the time it was written.
The court, with a conservative 6-3 majority, ruled unanimously that Section 3 of the 14th Amendment to the Constitution was unenforceable by the states, but critics were quick to point out the lack of originalist arguments.
“What struck me was how little attention was paid to the original substantive questions in the brief and oral argument, and how vague and frankly unpersuasive the discussion of history was in the published opinion,” said Evan Bernick, a professor at Northern Illinois University. College of Law.
J. Michael Luttig, a conservative former federal judge once considered a potential Supreme Court nominee, said the decision was a “textbook example of judicial activism” and that there was little original analysis.
“It’s disgusting in every way,” he said. “This is just one of many tributes.”
The decision itself was unsigned, and none of the conservative justices, including Gorsuch, wrote separately to explain their opinions.
This was disappointing to some self-styled originalists who believed that Section 3, as it was written and understood at the time, was self-executing, meaning that there was no requirement for legislation to be enacted to implement it.
The legal argument that Trump could be barred from the vote was made in part by two conservative legal scholars, William Baude and Michael Paulsen. law review article on the subject.
“I think the reasoning behind this idea is a disaster” he wrote Michael Rappaport directs the Center for the Study of Constitutional Originalism at the University of San Diego School of Law. He added that the decision contained an “unoriginal, fabricated argument.”
Rappaport argued in an email that the court is not an original court, but rather one that “sometimes decides things based on originality.”
Defenders of the decision tend to focus on the outcome rather than the methodology, which is intended to prevent similar actions that have disqualified presidential candidates in other states.
A commitment to originalism has long been favored in conservative legal circles, and Supreme Court nominees often claim to defend it when speaking at Senate confirmation hearings. But conservative justices differ on the extent to which they apply it. Gorsuch and Justice Clarence Thomas are probably the most outspoken advocates among the current justices.
“Suppose originality leads to a result you don’t like in one way or another. So what?” Gorsuch wrote in his 2019 book, A Republic If You Can Keep It.
a 2020 eventThomas said he aims to make sure the law makes sense for the average American.
“I believe that when we interpret the Constitution of the people, we have an obligation to make sense of it and to speak clearly,” he said. “I don’t think it’s that complicated.”
Liberal critics of the conservative majority have long targeted the court for ignoring originalist arguments that might lead to liberal outcomes, or for applying them selectively to achieve conservative outcomes.
They were partially upheld in 2022 by Roe v. They cite the decision that overturned the Wade decision to limit abortion rights and last year’s decision that struck down affirmative action programs in college admissions as examples.
In an attempt to engage with originalists, lawyers have presented arguments against the idea that abortion rights and race-conscious policies have no historical basis in law.
In both cases, “conservative majorities were willing to overturn longstanding precedents when the text and history were unfavorable,” said Praveen Fernandes, vice president of the liberal Center for Constitutional Accountability.
The court’s ruling in 2022 expanded gun rights, finding for the first time the right to carry guns outside the home. attracted attention for analyzing the history of gun rights.
Michael Smith, a professor at St. Mary’s University School of Law, took the criticism to a new level in a forthcoming law review article.Originalism Bulls —?“
His conclusion? “Yes. Come on.”
Smith said in an interview that he hopes to draw attention to how a court can pick and choose which methodology to use in a particular case, after which judges can say it will inevitably lead to a particular result.
“I think these announcements are bulls— at best,” he said. “At worst, it could be an outright lie.”