When Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court during President Trump’s first term, originalism found itself in an unfamiliar and challenging position.
All three of the court’s new members were avowed originalists, holding that judges ought to interpret the Constitution according to the meaning it had when it was ratified. As a result, a majority of the justices, including Clarence Thomas and Samuel Alito, now subscribed to this theory. Originalism, long seen as an insurgent force at the Supreme Court, had become its reigning philosophy.
For the originalists on the court, the shift from backbenchers to decision makers brought new responsibilities and presented new difficulties. Problems that had mostly been hypothetical debates within the court’s originalist minority became central questions of constitutional law. How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute?
The originalist justices have shown themselves to be divided on these and other questions of constitutional theory. To many critics of the Supreme Court, its majority appears monolithic, but that perception is mistaken. Indeed, the defining challenge for the court’s conservatives today is how to maintain a majority to move the law in an originalist direction despite the many theoretical disagreements among them.
For originalists such as myself, these fractious dynamics pose the greatest threat to the urgent effort to restore the rule of law that was so badly damaged by the Supreme Court in the 1960s and ’70s under Chief Justices Earl Warren and Warren Burger. But for all observers of the court, regardless of judicial or political inclination, these disputes are key to understanding its decisions.
Originalism in its modern form emerged in the 1970s. The Supreme Court had issued an array of controversial decisions including Miranda v. Arizona in 1966 (requiring an arrestee to be informed of certain rights before being interrogated) and Roe v. Wade in 1973 (holding that there is a right to abortion). To some in the legal academy — and to many in the public — nothing in the text or history of the Constitution seemed to justify these rulings. The court’s decisions struck them as arbitrary at best. At worst, in the words of Justice Byron White, who served on both the Warren and Burger courts, they appeared to be an “exercise of raw judicial power.”
The first originalists, such as the law professor (and later judge) Robert Bork, presented originalism as a principled alternative to this ad hoc, politically opportunistic approach to legal interpretation. Originalism aspired to ground judicial decisions in the text and history of the Constitution, which Judge Bork and others saw as more neutral and objective.
In the 1980s President Ronald Reagan appointed many originalists, including Justice Antonin Scalia, to key administration positions and to the courts, which brought originalism to prominence. But even with the appointments of Justices Thomas in 1991 and Alito in 2006, originalism remained a minority position on the Supreme Court. (Chief Justice John Roberts is generally not regarded as an originalist and declined to identify himself as one during his confirmation hearing.)
Mr. Trump brought originalism into the majority with his three appointments to the court. But soon after, the originalists began to disagree about the theory that otherwise united them.
Consider Fulton v. City of Philadelphia (2021), which concerned the right to the free exercise of religion under the First Amendment. (The case involved a Catholic foster care agency that refused to certify same-sex couples.) Justice Alito, joined by Justices Thomas and Gorsuch, was prepared to overrule on originalist grounds a 1990 precedent that narrowed the scope of the free-exercise right. But Justice Barrett, joined by Justice Kavanaugh, took a more cautious approach: They seemed to agree that the 1990 precedent was mistaken on originalist grounds, but they did not think that overruling it was necessary to decide the case at hand, and they wanted to know more about what legal test would replace the old one before voting to overturn it.
In the end, Justices Barrett and Kavanaugh, along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, joined the majority opinion, written by Chief Justice Roberts. Here, one of the most contested questions in originalist theory — how readily originalism should overturn precedent — surfaced as a fault line among the originalists, with Justices Kavanaugh and Barrett displaying greater deference to precedent.
While Justices Kavanaugh and Barrett were aligned on that question, they have parted ways on other matters, such as what an originalist judge should do when the original meaning of the Constitution does not provide a clear answer to a modern dispute.
Consider New York State Rifle & Pistol Association v. Bruen (2022), a case in which Justice Thomas’s majority opinion set forth a test for determining the constitutionality of gun laws. The test, which the court presented as originalist, placed significant weight on the history of firearms regulation. But in both Bruen and another firearms-related case, United States v. Rahimi (2024), the court considered examples of firearms regulation from long after the ratification of the Constitution.
That raised an important question: If what originalists care about is the conception of the right to keep and bear arms when the people ratified the Second Amendment in 1791, what is the relevance, if any, of firearms regulations from, say, the late 19th century?
In his concurrence in Rahimi, Justice Kavanaugh defended the use of such post-ratification evidence as a form of “tradition” that could help answer open questions about the original meaning of the Constitution, thereby allowing originalists to avoid the judicial policymaking that they had long criticized. Justice Barrett rejected this kind of evidence as largely incompatible with originalism.
Justice Kavanaugh’s originalism — like that of many of the founding originalists in the 1970s — seems motivated by a desire to constrain judicial discretion to prevent judges from improperly imposing their policy views in place of the legislature’s. Justice Barrett’s originalism, by contrast, seems motivated by the obligation to obey the commands of the people who promulgated the Constitution, even if those commands do not significantly constrain judges. Both views are rooted in concerns about the democratic legitimacy of judicial decisions, but they have potentially divergent implications for future cases.
Critics of the court might wave away these theoretical disagreements and point to high-profile cases in which the court’s originalists were united, such as Dobbs v. Jackson Women’s Health Organization (2022), which overruled Roe. But while the originalists stuck together in Dobbs, that was by no means an inevitable result. The same theoretical disagreements discussed above could easily have fractured the majority.
Justice Thomas — the originalist who is least deferential to precedent — made clear in his concurrence in Dobbs that he would have liked to have gone much further in restoring what he saw as the original meaning of the Constitution. Justice Kavanaugh’s concurrence, by contrast, indicated his desire to avoid a sweeping decision that would call into question the court’s prior holdings relating to topics like contraception, which reflects his more deferential approach to precedent.
These tensions could be navigated, as Justice Alito’s majority opinion in Dobbs deftly demonstrated. (I clerked for Justice Alito during the 2016-17 term.) His opinion simultaneously emphasized originalist evidence against a right to abortion while pointing out that, in Roe’s own words, abortion raised an “inherently different” question than did the precedents relating to contraception. This allowed Justices Thomas and Kavanaugh to sign onto the majority opinion without compromising their theoretical commitments. In this sense, Justice Alito’s opinion in Dobbs is a model for the originalist justices as they encounter similar challenges in the future.
This Supreme Court, contrary to accusations that it is lawless and political, is more committed to a particular constitutional theory than any Supreme Court has been since at least the 1940s. Understanding the deep theoretical roots of the conservative justices’ agreements and their disagreements is crucial to appreciating what has happened since Mr. Trump transformed the court during his first term — and what may happen in the years to come.
J. Joel Alicea is a law professor at the Catholic University of America, where he directs the Center for the Constitution and the Catholic Intellectual Tradition.
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