Over the course of the Supreme Court’s 232-year history, 110 men and six women have served as justices. Just a small handful of them have been “originalists,” holding the view that the only appropriate way to interpret the Constitution is to ask how its provisions were specifically understood at the time they were adopted. But in 2020 that handful became, for the first time, a majority of the Court when Amy Coney Barrett was confirmed, joining fellow originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. (Chief Justice John Roberts is sometimes an originalist and sometimes not.) During the 2020–2021 term—Barrett’s first—the Court proceeded cautiously, mostly seeking consensus across ideological lines through narrow decisions.1
But this past term, which concluded on June 30, these five individuals abandoned caution and exerted their newfound authority like few justices ever have. The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required Maine to fund religious education and a Washington State public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.
In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this past term, the new majority aggressively applied originalism to disastrous effect, and only they know how far they will go.
The biggest case of the term, and thus far of the century, was Dobbs v. Jackson Women’s Health Organization, in which five justices, including all three of Donald Trump’s nominees—Gorsuch, Kavanaugh, and Barrett—voted to overrule Roe v. Wade and about twenty other Supreme Court cases that had followed and applied Roe over nearly half a century. Dobbs will almost certainly be included among the Court’s worst decisions in history. Never has the Court eliminated a constitutional right so central to the equality and autonomy of half the nation. And never has the Court overturned precedent on such a transparently thin basis.
In retrospect, the Dobbs decision was foretold long before Justice Alito’s draft opinion leaked in May. The early warning came in December 2021, when the Court rejected two challenges to an unprecedented Texas law that authorizes private persons to sue anyone who participates in or facilitates an abortion in that state after six weeks of pregnancy. The six-week ban was plainly unconstitutional under the Court’s abortion jurisprudence at the time, and similar bans had been struck down everywhere they had been enacted. But by empowering private citizens and not state prosecutors to enforce the ban, the Texas legislature sought to block the usual process for testing such laws—a suit against the state officials responsible for enforcement. The only reason to structure the law this way was to try to evade federal court review of its constitutionality.2
Had Kansas enacted a similarly structured law in 1955, after Brown v. Board of Education required an end to state-imposed racial segregation, the Supreme Court would unquestionably have enjoined it as illegal state resistance. Had such a law been enacted today to undermine the modern Court’s zealous protections of religious freedom, it too would almost certainly have been enjoined. But in a pair of cases brought by women’s health clinics and the Justice Department, the five members of the Court who would later vote to overturn Roe v. Wade effectively held that the Texas law could not be challenged before it was enforced. And since it authorized draconian financial penalties and multiple lawsuits for a single abortion, even without being enforced the law had the effect of shutting down abortion after six weeks of pregnancy in Texas. The willingness of five members of the Court to countenance such a blatant effort to evade federal review of a federal right is explicable, in hindsight, only by their knowledge that they would soon be eliminating that right altogether.
On June 24 the Court followed through: in Dobbs, those five justices (Alito, Thomas, Gorsuch, Kavanaugh, and Barrett) declared Roe v. Wade “egregiously wrong” and overruled it, leaving the intensely personal decision to terminate a pregnancy a matter for politicians, not the pregnant woman herself to decide. Chief Justice Roberts also voted to uphold the Mississippi law in question, which banned abortion after fifteen weeks, but he would have done so without overruling Roe and by holding instead that fifteen weeks affords women a reasonable opportunity to exercise their right to terminate their pregnancy. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.
What made Roe “egregiously wrong” in the eyes of the majority? Justice Alito reasoned that Roe’s error was its failure to identify laws in 1868, when the Fourteenth Amendment was adopted, that protected the right to abortion. The Fourteenth Amendment prohibits states from depriving persons of “liberty” without “due process of law,” which the Court has long interpreted as protecting from state interference both “bodily integrity” and highly personal decisions about reproduction, sexual intimacy, and family—such as deciding whether to use contraception or whom to marry. But because “abortion” is not mentioned in the Fourteenth Amendment, Alito maintained, the right to abortion could not exist without a firm foundation in “history and tradition.” And because abortion was widely prohibited in the late nineteenth century, the Fourteenth Amendment’s reference to “liberty” cannot have been understood to encompass it.
The majority’s conclusion that Roe was “egregiously wrong,” in other words, rested on its view that the only appropriate way to interpret the Constitution is by reference to its “original understanding.” But there is another way to read the Constitution. It’s sometimes called the “living Constitution” or “common-law constitutionalism,” and it is the method used by virtually every justice in the Court’s history other than the five in the Dobbs majority, the late Antonin Scalia, and sometimes Chief Justice Roberts. Under that approach, the Court starts with the text of the Constitution but recognizes that its broad, open-ended terms—such as “liberty,” “due process,” and “equal protection”—were designed to evolve over time, through the accretion of precedent, the articulation of principle and fundamental norms, and reasoning by analogy. Under that approach, Roe is not “egregiously wrong” but plainly correct.
In a series of decisions over the last century, the Court has interpreted “liberty” in the Fourteenth Amendment in this way, and not exclusively by reference to its original understanding or “history and tradition.” It has relied on the provision to bar stomach-pumping to search for drugs and forced sterilization, and to protect the rights to use contraception, to marry someone of a different race or the same sex, to choose how to educate one’s children, and to engage in consensual sexual relations with adults of one’s own sex, despite the fact that none of these rights is expressly provided in the Constitution. The right to choose whether to bear a child is of a piece with these decisions and is therefore protected for the same reason. Roe is “egregiously wrong,” then, only if the methodology used by virtually every justice to have ever served on the Court is egregiously wrong.
If “liberty” in the Fourteenth Amendment is now to be strictly confined to specific rights that that provision was understood to protect in 1868, by contrast, most of the Court’s due process jurisprudence would be overturned. In 1868 there was no history of protecting the rights to contraception, same-sex marriage or intimacy, or interracial marriage. Justice Alito insisted that the decision to overturn Roe did not affect those other rights, although Justice Thomas in a concurrence welcomed revisiting all but the last of them.
Alito sought to distinguish abortion because it involved, as he put it, the “destruction of a ‘potential life.’” But the originalist approach he adopted in Dobbs maintains that liberty generally—not merely rights involving the destruction of a potential life—must be understood strictly by reference to history and tradition. So in finding Roe “egregiously wrong,” the majority not only relied on an outlier method of constitutional interpretation but did so highly selectively.
Overturning precedent requires more than a determination that the prior ruling is wrong, because otherwise the Constitution would change each time the makeup of the Court does. Justice Alito conceded that the Court must also ask whether people have relied on the prior ruling before overturning it. But he callously dismissed such concerns, claiming that while people may rely on a legal precedent when it comes to “property and contract rights,” no similar reliance existed here.
This is stunningly obtuse. As the Court recognized thirty years ago, when it rejected an earlier effort to overturn Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, millions of persons “have organized intimate relationships and made” significant life choices “in reliance on the availability of abortion in the event that contraception should fail.” The right to control one’s body and reproduction is at least as important to women’s autonomy and equality as rights of contract and property. While the majority opinion in Dobbs declared that “the most striking feature of the dissent is the absence of any serious discussion of the States’ interest in protecting fetal life,” the dissent quoted the majority’s own language back at it: “‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women.”
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court similarly elevated adherence to a crabbed view of history over both standard constitutional methodology and present-day reality. Following some of the most horrific mass shootings in recent memory, the Court, by the increasingly common margin of 6–3, struck down a New York law dating from 1911 that required individuals to demonstrate that they had a need to carry a gun in public before they could be licensed to do so. Again the Court turned to history, this time not to deny a right but to invalidate long-standing and eminently reasonable efforts to protect public safety.
The Second Amendment did not even protect an individual right to own a gun until the Court’s District of Columbia v. Heller decision in 2008. Before then, the courts, the Justice Department, and historians had long viewed the Second Amendment as protecting only the rights of states to field a militia, as a check on federal tyranny. In Heller, after a long and carefully orchestrated campaign by the National Rifle Association, the Supreme Court for the first time announced that the Second Amendment protected an individual right to possess a firearm in one’s home for self-defense. Its decision rested on a revisionist view of the Second Amendment’s history—a view that many historians have strongly questioned.3 At the time, however, the Court reassured the public that the Second Amendment right was not absolute and was subject to reasonable regulations. Much to the NRA’s frustration, federal courts applying Heller upheld the vast majority of gun regulations.
In Bruen, however, the Court went much further. In a decision written by Justice Thomas, it announced that the only gun regulations that the Constitution permits are those that have a direct analogue in laws that existed in the eighteenth century, when the Second Amendment was adopted, or possibly the nineteenth century, when Congress adopted the Fourteenth Amendment, which extended the protections of the Bill of Rights to the states. (As Justice Barrett pointed out in a concurring opinion, the majority did not clarify which historical period should govern where there is a conflict.) In the absence of a specific historical precedent, any restrictions on the right to bear arms are unconstitutional—no matter how serious the threat guns pose to public safety or how reasonable the regulation. And, Justice Thomas concluded, there were no suitable historical analogues to New York’s rule requiring individuals to show they had a need to carry a gun in public.
The Court’s approach is contrary to common sense, constitutional precedent, and the very history it purports to rely upon. Most fundamentally, why should states in the twenty-first century be limited to what states did centuries earlier, particularly when conditions have radically changed? When the Second and Fourteenth Amendments were adopted, the nation was largely rural, and police forces were nonexistent or nascent. The need for self-defense was accordingly much greater and the risk to public safety far less urgent than today, when millions of Americans live in densely populated urban areas beset by gun violence, military-style guns can be bought over the Internet by virtually anyone, and police forces established “to serve and protect” are ubiquitous.
The particular historical approach Justice Thomas announced, in which the only laws that are valid are those that mirror eighteenth- and nineteenth-century laws, applies to no other constitutional right. Courts do look to history and tradition to help define the scope of rights, but that is only the beginning, not the end, of the inquiry. With respect to virtually all other rights, courts also ask whether the state has a strong enough interest to limit the right, and whether it has done so in a sufficiently narrow way. This “means-ends” scrutiny, pervasive in constitutional law, governs free speech, free exercise, and equal protection claims, among others, and expressly allows for the assessment of contemporary needs and conditions.
Nor are other rights frozen by conditions in early America. The Fourth Amendment, for example, permits the government to invade privacy rights if its actions are “reasonable,” a judgment that takes account of current circumstances, including technological advances and the public’s “expectations of privacy.” That’s why the police need probable cause to attach a GPS monitor to your car or to search your cell phone if you are arrested. The Eighth Amendment prohibits not just punishments deemed “cruel and unusual” as of 1791, when the provision was adopted, but those that have come to be seen as cruel and unusual with the passage of time, such as mandatory life sentences for juveniles. And the procedures guaranteed by the Fifth Amendment’s due process clause are not confined to eighteenth-century rules but call for a balancing of the government’s interests against the individual’s interests. In each of these areas, courts applying constitutional review assess government needs and individual interests today, not just a couple hundred years ago.
Between Heller and Bruen, every court of appeals applied a two-step approach in assessing the validity of gun regulations. They first asked whether there was a historical analogue for the regulation. But if there wasn’t, they applied “means-ends” scrutiny and asked whether the state’s interests were sufficiently important and its means sufficiently tailored to permit the regulation. Justice Thomas jettisoned this second step altogether. Now, no matter how strong the government’s need to regulate guns, it cannot do so unless it can point to a historical analogue. Instead of asking whether a state has good reasons to impose a particular limit on guns in light of modern conditions, courts will ask only what was done two centuries ago.
But it gets worse. Defenders of New York’s law cited boatloads of historical examples of laws restricting the public carrying of weapons, spanning nearly seven hundred years. They include the Statute of Northampton, first enacted in 1328, which made it a crime to carry arms in public without the king’s permission and which was copied by several American colonies. Limits on carrying weapons continued through the founding era, and before and after the enactment of the Fourteenth Amendment. It should hardly be surprising that governments have long restricted the carrying of weapons in public.
Justice Thomas, however, found ways to reject each and every historical example. As Justice Breyer pointed out in a devastating dissent, Thomas found some “too old,” others “too recent.” “Some were enacted for the wrong reasons,” others “arose in historically unique circumstances.” Thomas’s wide-ranging set of excuses for rejecting analogues only underscores the subjective character of the enterprise and belies any claim that the historical method of interpretation significantly restrains judicial discretion.
The Court’s treatment of a pair of cases involving religion and public education further illustrates that its fidelity to originalism is both opportunistic and manipulable. In Carson v. Makin, the Court ruled that the free exercise clause required Maine to use taxpayer funds to pay for private schools that engage in religious indoctrination. In remote regions where operating a public school is not feasible, Maine provides subsidies to parents to send their children to a private school, but specifies that the funds may not be used for religious indoctrination. For decades the Court interpreted the establishment clause as placing strict limits on public aid to religious schools, in the interest of preserving a clear divide between church and state. But in Carson, it held not only that Maine could use taxpayer funds to support religious education, but that it must do so if it supported private secular education.
If one were to ask whether the framers understood the Constitution to require states to fund religious indoctrination, the answer would surely be no. As James Madison declared, compelling taxpayers to sponsor religious activity “is itself a signal of persecution,” which “will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced amongst its several sects.” The majority, so enamored of history in Dobbs and Bruen, didn’t even acknowledge this original understanding in its decision. The Court cited no eighteenth- or nineteenth-century precedents supporting its new view of the free exercise clause, and instead extended principles it had first announced in a pair of recent cases. In other words, the majority in Carson adopted the same evolutionary approach it rejected in Dobbs and Bruen. Even the originalists are only originalists sometimes—much like “cafeteria Catholics,” picking and choosing when to follow their own dictates.
In Kennedy v. Bremerton, the same 6–3 majority did invoke history, but at such a level of generality as to be meaningless. The Court ruled that a public high school was constitutionally compelled to allow its football coach to pray publicly at the fifty-yard line at the conclusion of every game, rejecting the school’s understandable concerns that the prayers would be seen as carrying its imprimatur and risked coercing team members eager to please their coach to join in the prayers against their will.
In blessing the coach’s conduct, the Court overruled decades of precedents that had directed courts in establishment clause cases to ask whether a government action would be understood as endorsing religion, had the purpose or effect of advancing religion, or involved excessive entanglement with religion. Much as in Bruen, the Court in Bremerton instructed lower courts to look only to history and tradition. But it then identified no history of state employees having the right to pray publicly at official events in contravention of their employers’ wishes. Instead, the Court vaguely invoked only “a long constitutional tradition under which learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society.’” “Learning how to live in a pluralistic society,” however, could just as well support a ruling that public school employees should avoid official conduct that endorses a particular religion. History at this level of abstraction allows the Court to do whatever it wants—again belying the oft-made claim that originalism constrains judges more than alternative modes of constitutional interpretation.
The majority’s zealous (if fickle) commitment to a bygone era was also reflected in two cases in which the Court elevated its skepticism about the modern administrative state over the most pressing emergencies of our time—the Covid-19 pandemic and climate change. In both cases, the Court blocked efforts by administrative agencies to respond to these threats, essentially saying that only Congress could do so.
Administrative agencies are an established and necessary feature of our federal system. Even when it was not as dysfunctional as it is today, Congress couldn’t possibly regulate with the specificity and expertise needed to take on the nation’s environmental, health, energy, security, and economic problems. Recognizing that, Congress long ago created administrative agencies, set out general guidelines for them, and relied on the agencies to fill in the details, implement its goals, and monitor compliance. But many conservatives (and few more vehemently than Justice Gorsuch) object that such agencies were not foreseen by the Founders, exercise too much power, and have too much independence. That view prevailed in two of the most important cases of the term.
In National Federation of Independent Business v. Department of Labor, the Court blocked a Biden administration regulation that would have required businesses with more than one hundred employees to either impose Covid vaccine requirements or institute testing and masking. The agency estimated that this rule would save 6,500 lives. The Court accepted that estimate but blocked the regulation anyway. Invoking an unprecedented “major questions doctrine,” the Court’s six conservatives ruled that the Occupational Safety and Health Administration (OSHA) could not impose the regulation because Congress had not authorized it to do so with sufficient specificity.
In fact, the regulation fell squarely within the responsibility Congress delegated to OSHA when it authorized the agency to adopt emergency measures where “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Covid-19 was plainly a “new hazard” and, absent protective measures, workers would be exposed to the hazard at work, and many would get sick and die. Adopting language from last year’s decision striking down the CDC’s temporary ban on evictions during the pandemic, the Court declared that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” and then found Congress’s grant of authority insufficiently “clear.”
This test, which allows the Court to override the plain text of a statute by deeming it insufficiently specific, finds no support in the history and tradition that the Court invoked in cases like Dobbs, Bruen, and Bremerton. And it is highly manipulable. There is no standard for what is “clear” enough, or what constitutes a power “of vast economic and political significance.” Congress’s authorization for OSHA to act didn’t specify that it applied to Covid-19 because the law was enacted in 1970. What Congress did foresee, however, was that emergency measures would be necessary from time to time to counter “grave danger” from “new hazards” in the nation’s workplaces—and it specifically directed OSHA to respond. No more should be required.
On the last day of the term, the Court invoked its newly minted “major questions doctrine” again, this time to rule that the Environmental Protection Agency lacked the authority to require producers of electrical power to shift some of their sources from coal to natural gas or renewable energy in order to reduce carbon dioxide emissions. Nothing is more crucial to our collective fate than fighting global warming, and the EPA quite reasonably concluded that if we are to do that responsibly, we need to reduce our reliance on coal. The literal terms of the statute plainly authorized the EPA’s action—it empowered the EPA to require the “best system of emission reduction which…the [EPA] Administrator determines has been adequately demonstrated.” The EPA examined the alternatives and concluded, as have many scientists and private companies, that the best system is to shift away from coal. It didn’t mandate a wholesale transformation, but it did call for reducing reliance on coal by about 10 percent by 2020.
Here, too, the six conservative justices concluded that because the EPA’s rule would have substantial economic consequences, Congress had to be more specific about its authorization. But Congress has long delegated broadly to administrative agencies, and those agencies have routinely issued regulations with substantial economic consequences. That would describe many if not most decisions of the Federal Reserve, Federal Trade Commission, Department of Energy, and Department of Agriculture, to name just a few. So this newly minted doctrine allows the Court to block virtually any significant administrative rule with which it disagrees. The conservative justices, who typically insist that they must be bound by the text of a statute, have afforded themselves an unfettered escape route. As Justice Kagan said in dissent:
The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.
The Court’s conservatives are not just cafeteria originalists, but cafeteria textualists as well.
Near the close of their joint Dobbs dissent, Justices Breyer, Sotomayor, and Kagan quote the Casey Court’s warning (itself quoting Justice John Marshall Harlan) that to reverse precedent
“upon a ground no firmer than a change in [the Court’s] membership” would invite the view that “this institution is little different from the two political branches of the Government.”
They then go on to write:
The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.
Judging, especially at the Supreme Court level, requires not just a theory for interpreting constitutional law. It requires statesmanship, humility, an open mind, and, perhaps most importantly, respect for the institution and the accumulated judgment of one’s predecessors. As the Dobbs dissent noted, Justices Kennedy, O’Connor, and Souter understood that:
The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here.
Next term the Court takes up the constitutionality of affirmative action, racial discrimination in redistricting, a sweeping challenge to the Indian Child Welfare Act, a claim that “expressive” businesses have a First Amendment right to discriminate against gay couples seeking to celebrate their weddings, and an unprecedented and dangerous claim that state courts cannot police their legislatures when they gerrymander congressional districts. Whether the Court will continue its headstrong approach to all that has gone before it is likely to depend on how we as citizens respond to its initial salvos. If Americans mobilize, demonstrate, and vote on issues like abortion, gun control, and climate change, the Court will at some point have to take heed. But if we sit back and allow it to take away our rights and safety without a fight, there’s no telling how far the five justices who now exercise majority control will go.
This article was originally published online July 8, 2022 in slightly modified form.—The Editors
August 18, 2022
The Irish Lesson
‘What We Want Is to Start a Revolution’
See my “Surprising Consensus at the Supreme Court,” The New York Review, August 19, 2021. Never has so much changed in the course of a single year. ↩
As legal director of the ACLU, I was co-counsel for Whole Woman’s Health, an abortion provider in one of the lawsuits challenging the Texas law. ↩
See Duncan Hosie and Reva Siegel, “The Remaking of the Second Amendment,” nybooks.com, June 10, 2022. ↩