What Should America Expect from a More Originalist Supreme Court?

Visitors outside the Supreme Court building in 2015. (Jonathan Ernst/Reuters) Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do. I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey : “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent. Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “Marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical […]

This site uses Akismet to reduce spam. Learn how your comment data is processed.