Although the term “originalist” could in theory describe virtually every current member on the United States Supreme Court, for many supporters of traditional conservative originalism, the moment of triumph for the judicial philosophy occurred on Monday, April 10, 2017, when prominent originalist Justice Neil Gorsuch joined the nation’s highest court. With the addition of Brett Kavanaugh, another avowed textualist/originalist, one would likely expect originalism to exist at its all-time pinnacle of influence on the Court. Yet, when the most consequential cases involving some of our most fundamental liberties from the last couple of years are examined, entirely missing from the Court’s and often from the most prominent originalists’ analysis is an intellectual support based on original public meaning.
Instead, what has dominated the Court’s most consequential opinions are modern-based (politically conservative) value judgments that can stand in direct conflict with the lawful original intent of Congress. Take, for example, the case I was involved with last term, Nieves v. Bartlett. Here, the Court was determining whether a viable 42 U.S.C. § 1983 claim existed, yet, the only side, our side, that listed the language from the statute as a source of authority, lost. Unfortunately, the result in Bartlett can be found in most 1983 cases, where “the Supreme Court has taken a straightforward statute, plainly providing that any state official who violates someone’s rights ‘shall be liable to the party injured,’ and concocted an atextual, ahistorical doctrine,” to deny a remedy Congress plainly intended. Although Justice Gorsuch dissented, in part, from the Court’s Bartlett opinion based on originalism grounds, Justice Brett Kavanaugh joined the atextual, ahistorical majority opinion in full.
Contrast the shamelessness (even by self-proclaimed originalists such as Kavanaugh) of unilaterally altering the lawful, enumerated intent of Congress in the Bartlett case to strike down claims of police misconduct, with the Court’s stubborn refusal to “second-guess lawmakers’ judgments” when it comes to gerrymandering based on factors such as race, and you don’t need to be a constitutional expert to see the judicial activism going on here.
To be clear, and for whatever it is worth saying at this point, I subscribe to the view of constitutional originalism as the preferred dominated method of judicial analysis. But what I see in practice today, even from prominent originalists, is simply not originalism.
This upcoming term, a case will seemingly require the Court to weigh a textual conflict over whether discrimination against members of the LGBT community counts within the plain meaning intent of Congress to prohibit “sex discrimination.” As Nicholas Little explains, although it might seem counterintuitive to some, there is a powerful textualist, even originalist argument in favor of a definition that includes protection for LGBT people:
Focusing on the category of sex, here, we can see that if a woman is fired from her position because she is married to another woman, whereas a man would not be fired for being married to a woman, then the termination is the result of the woman’s sex. She is treated differently for not being a man. Similarly, if an employer permits women to wear skirts to work, and refuses to promote an individual who the employer sees as a man, because that individual chooses to wear skirts to work, that individual is being discriminated against for not being what the employer defines as “a woman.”
“But wait,” many people say. “There’s no way in 1964 Congress intended to protect gays or transgender folk.” And they aren’t wrong. In 1964 homosexual relations were criminal in much of the country – Illinois in 1961 was the first state to decriminalize such sexual activity by repealing its sodomy laws. But lack of intent doesn’t matter to textualists such as Justice Neil Gorsuch. To them, all we need to interpret a law is the law itself. The words passed by Congress, and their plain meaning, is what defines the scope of the law.
Under that analysis, it’s very tough to argue that firing a lesbian, or a transgender person, isn’t discrimination based on their sex. The Supreme Court has long held that gender stereotyping is covered by Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), refusing to make a woman partner in an accounting firm because of her lack of femininity was held to violate the law. Requiring the plaintiff to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” as her supervisor advised her, violated the law. Men would not be required to act in that fashion to be promoted. There is nothing in the text of the law that suggests the same analysis should not apply to men and women simply because of their sexual orientation or gender identity. The law is the law – you can’t make hiring and firing decisions based on stereotypes of femininity and masculinity.
Yet despite this straightforward textual argument, Little, like myself, has serious doubts Justice Gorsuch will act with “intellectual integrity.” The reason is because of what Little calls Justice Gorsuch’s “position on religious exemptions.” I have been more blunt than Little and stated that when it comes to cases involving religious liberty, Justice Gorsuch has actively tried to supplant original public meaning and intent with his own personal views favoring religious belief at the great expense of free conscience rights of non-believers. The reason Justice Gorsuch suddenly flips from his avowed interpretive doctrine when it comes to the subject of religious liberty is entirely speculative. A logical inference, however, can likely be derived from the recent statements of our last two attorney generals, who, after being appointed by the same man, have portrayed Madisonian separation, i.e., secularism, as a dire threat to our Constitution and our country that must be stopped lest American morality crumble.
I will admit, the reason I am such a proponent of original, Madisonian religious liberty, is that it represents the best bulwark against religious bigots like former Attorney General Jefferson Beauregard Sessions and current AG William Barr who want to treat me as some kind of threat to my country’s “traditional values” unless I subscribe to their Abrahamic religion. Adherence to original public meaning has other virtues, of course, other than protecting oneself against the bigoted views of the Sessions and Barrs of the world, I just won’t expect to be seeing them in practice anytime soon.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
Mike Quartararo is the managing director of 
