With the 2017 Supreme Court term underway, it’s time to consider its originalism implications. One might think that originalists would be optimistic with Justice Gorsuch — apparently a strong textualist originalist — joining the Court. But I suspect that, at least on the headline cases, it will be a bad term for originalism, based on the leading case the Court will consider.
To begin, consider Tuesday’s argument in Gill v. Whitford, the political gerrymandering case (SCOTUSblog account here). As Justice Gorsuch pointed out, it’s not even clear on what part of the Constitution the case should be based, and as George Will points out, the challenge is to a practice as old as the Constitution and literally named after one of the Framers. Perhaps there’s an argument that political gerrymandering is nonetheless unconstitutional under the Constitution’s original meaning, but I doubt the Justices in the majority (assuming, as I do, that the gerrymanderers will lose) will be at all interested in it. Rather, as oral argument made clear, the question is how the Court will intervene to stop the odious practice of political gerrymandering without opening the floodgates to annoying follow-on litigation the Court would prefer to avoid. Almost every comment at the argument from both judicial sides (apart from Justice Gorsuch) was pragmatic: can we make this work or not?
Even more problematic is Janus v. American Federation of State, County, and Municipal Employees, Council 31, the union dues case. The conservative-leaning Justices have been anxious for some time to overrule Abood v. Detroit Board of Education and hold that the First Amendment bans compelled union dues for public sector unions. They may now have the votes (it seems very likely they had the votes prior to Justice Scalia’s death). But I do not see the originalist argument for the challengers in this case. Routinely, governments compel private citizens to pay taxes, with some to the tax revenue used to support governmental messages the taxpayers may not endorse. No one thinks this is a constitutional problem, and I’m not aware of any originalist evidence that it is. In Janus, the government requires private citizens to pay money to the union, with some of the money being used to support the union’s messages that the private citizens does not endorse. Is there a difference of constitutional magnitude? That is what the Supreme Court must hold to rule for the challengers (as I assume it will). I see no originalist evidence for this conclusion. The short of it is that making a person pay union dues, where the money is used to support expressive activities the person doesn’t support, seems unfair. (I pay state bar dues, so I understand). But unfair and unconstitutional are not the same thing. It’s bad enough for originalists when non-originalist Justices decide on pragmatic or fairness grounds and don’t bother with an originalist argument; it’s even worse when supposedly originalist or originalist-leaning Justices do it.
And third there is the travel ban case, assuming it is not dismissed as moot. However it comes out, I doubt originalism will have much to do with it, as immigration is an area where a basis in the Constitution’s original meaning was long ago abandoned.
Of course, there may be hidden gems for originalism, and some important cases on which certiorari may be granted in the near future might have originalist overtones (for example, several pending Second Amendment cases). But I suspect that the headline cases this term will see the Court majorities largely ignoring originalist arguments. (Perhaps, though, we will have some classic dissents).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.