Also published in the Kansas City Star.

Justice Kagan is wrong: Conservative Supreme Court ‘originalism’ killed Roe v. Wade

James Staab

During her 2010 confirmation hearings, Supreme Court Justice Elena Kagan declared, “We are all originalists.” As much as I admire Justice Kagan, her statement is highly misleading and harmful to debates over constitutional interpretation.

Defenders of the concept of originalism claim that the provisions of the Constitution must be interpreted based upon their original meaning. While originalism is a minority perspective in the U.S., it now has a stronghold on the Supreme Court. Four of the current members of Chief Justice John Roberts’ court — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — describe themselves as originalists. Justice Samuel Alito, the author of last year’s Dobbs v. Jackson Women’s Health Organization decision, which overturned 1973’s Roe v. Wade, calls himself a “practical originalist.”

The reason I believe Kagan’s observation is harmful is because it gives legitimacy to originalism, which started out as a reactionary movement against Chief Justice Earl Warren’s court and represents a radical departure from the common law tradition in the United States.

Originalism did not exist until the 1970s — although I argue in a recent book that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was the court’s first full-throated originalist. Robert Bork, now regarded as the godfather of originalism, was the first to advocate that constitutional interpretation must be based on the framers’ intent. Although originalists have shifted their focus to original meaning — the idea that constitutional provisions must be based on what the society that adopted them understood them to mean, not the subjective intentions of the framers — their backward interpretative approach has garnered considerable support in the legal community and on the Supreme Court itself.

Kagan’s statement is also misleading because the Supreme Court has always relied on other sources of law than text and history. In Fletcher v. Peck, an 1810 contracts clause case, Chief Justice John Marshall rested the court’s decision on both textualist and natural law grounds. His colleague, Justice William Johnson, did not believe the text supported the court’s decision, so he simply based his decision on natural law.

In a 1920 case, Justice Oliver Wendell Holmes described the Constitution as an organism that must be interpreted “in the light of our whole experience and not merely in that of what was said a hundred years ago.” He also wrote in the decision: “When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”

Then there’s the question of why we would want to go back in time to interpret the Constitution. Its framers did not require, nor intend, future generations to be governed by their own specific intentions or societal norms. Their use of broad language was both necessary and purposeful. “It is a constitution we are expounding,” Chief Justice Marshall wrote in 1819, one that “is intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The dissenting justices in Dobbs, one of whom was Kagan, attempted to defend a woman’s right to obtain an abortion by noting that women were not treated as equals in 1868, when the 14th Amendment was adopted. Historically, there are other significant decisions that would have come out differently if the Supreme Court limited itself to an originalist approach: 1954’s Brown v. Board of Education striking down segregation in public schools, 1967’s Loving v. Virginia prohibiting bans on interracial marriages, and 2015’s Obergefell v. Hodges overturning bans on gay marriage.

It is also important to remember that originalism started out as a reactionary movement to counter the rulings of the Warren Court. In the early 1980s, Bork and Antonin Scalia were the faculty sponsors for the Federalist Society chapters at their respective law schools. What began as a small group of disaffected law students has turned out to be one of the most powerful legal organizations in the world. During the Trump administration, the Federalist Society served as a pipeline for federal court judgeships, and its behind-the-scenes network of attorneys has moved the Supreme Court’s jurisprudence substantially to the right in the areas of voting rights, gun rights, corporate speech, freedom of religion, church and state, administrative law and abortion.

After Bork’s death, then-Justice Scalia credited his good friend with being “the intellectual point-man for the movement to curb the pretensions of the Warren Court and return the meaning of the Constitution to what it said.” Justice Clarence Thomas, whom Scalia referred to as “a blood-thirsty originalist,” described his relationship with his senior colleague as “a band of brothers.” “Whether we win or lose,” Thomas remarked in a 2016 address honoring his late friend, “we are in this battle together.” Dobbs, the decision that overturned Roe v. Wade and deprived women of a fundamental right they’d had since 1973, is the culmination of the originalist project.

Unfortunately, it will not be the last consequential decision.

With permission of the author.

Dr. James Staab, Professor, American Politics and Law, received his B.A. from Roanoke College, his J.D. from the University of Richmond and his Ph. D. from the University of Virginia.

Dr. Staab received the Governor’s Award for Excellence in Education in 2012 and the Byler Award, UCM’s most distinguished faculty award, in 2014.