An Original Moment: Interview With Josh Blackman

By Rafael Hoffman

In the waning days of its term, the Supreme Court left no room for doubt that American law had entered a new era.

Its most watched opinion, Dobbs, overturned Roe v. Wade after nearly 50 years, returning decisions over how to regulate procedures that end the lives of unborn children to the states. Yet, it was only one of many with politically charged results. In Carson v. Makin and Kennedy v. Bremerton School District, the justices cemented a long building trend that pushed back the limits liberal courts of the 1960s and 70s placed on government funding for religious entities and public expressions of faith.

In New York State Rife & Pistol Association v. Bruen, the Court struck down a state law that required applicants to show specific cause for their need of a concealed-carry gun license. Another ruling reined in the reach of the Environmental Protection Agency.

Voices on the left bewailed what they presented as the effects of an “ultra-right wing” majority on the Court, using legal doctrine to accomplish policy outcomes.

Yet, while legal conservatives are celebrating this fresh spirit on the Court, they say that what has arrived is really the ascendancy of originalism, the long germinating movement calling for jurists to interpret the Constitution and laws based on how they were understood at the time of their framing.

That method, they argue, is an even-handed approach that could ostensibly deliver policy victories for the right or left, depending on what the text actually was supposed to mean. A case in point, they argued, was the Court’s decision to allow the Biden administration to end a Trump-era policy requiring asylum seekers to “remain in Mexico” while they await immigration hearings.

Originalism’s triumph has been a long time in the making. After several decades of what conservatives saw as loose constitutional interpretations used to codify progressive outcomes, right-leaning scholars and jurists, led most prominently by the late Justice Antonin Scalia, championed what they cast as a return to a purer understanding of American law. That movement was nurtured by the Federalist Society, an organization that promoted the ideas of originalism, united conservative legal minds, and played an important role in helping Republican Presidents vet judicial appointments.

Starting in the 1980s, the movement slowly gained additional acceptance and influence.

Now, after a combination of circumstances gave former President Donald Trump the opportunity to appoint three Supreme Court justices, the powerful body’s originalist majority was sealed, with six of its members adherents to the movement.

To gain a better understanding of what the originalist moment means for American law, Hamodia spoke with Josh Blackman, a professor at the South Texas College of Law in Houston, and a frequent speaker at Federalist Society events.

How would you define originalism? And is it fair to present the approach as a new doctrine?

Originalism is not a hard concept to define, since all it calls for is that the Constitution and other subsequent laws be understood as they were at the time when they were written.

It’s not new, it goes back to the time of the framing. The perception of it as being a novel approach comes from decades stretching back to the 1930s until recently where the Court rejected interest in original meaning and focused on the Constitution as a living, breathing document. That really was the “new” movement. The idea of understanding a document as the people who wrote it intended is intrinsic to what most people do when they study a text.

That what was done historically and there are cases dating back to the Marshal Court in the 1800s, where the justices asked what the framers’ intentions were.

The name most commonly associated with the originalist movement is the late Justice Scalia. How integral was he to the rise of originalism and who were other figures that played a major role?

Scalia was essential as a judge whose opinions made text and history the focus of debate. But he was also essential as a spokesperson who took originalism on the road and spoke to groups of lawyers, students, academics — really any group that would listen — to make the case for originalism. That started a discussion and helped it gain acceptance.

The other figure who played an important role was Edwin Meese, who served as Attorney General during President Reagan’s second term. Under Meese, the Department of Justice filed briefs and made arguments through the solicitor general’s office that focused on originalist interpretations. He was also influential in guiding the Reagan administration to appoint originalist judges to the bench, most prominent among them being Scalia himself.

How important was the Federalist Society to originalism’s ascendancy?

The Federal Society created an environment for debate, where law students and attorneys from the right could come together and talk about their views on the law. This debate really allowed originalism to become mainstream. It was no longer a fringe idea. People learned about it in law school and wrote papers about it. In that regard, it served a very important function.

Is it fair to say that the Federalist Society strengthened the conservative legal movement by organizing its adherents around a unified approach and getting them on the same page?

I don’t think that all originalists are on the same page; we’re on a couple of different pages. But we are all reading from the same book.

The Federalist Society became a place where people get to debate those differences. As is always the case, debate strengthens your ideas. The way to sharpen a knife is against another knife. When everybody agrees with each other and nothing is contested, ideas don’t get refined.

Through those debates, conservative legal ideas became sharper and stronger. It’s definitely one of society’s most important contributions. 

What are the clearest signs of originalism’s prominence at the Supreme Court?

What you see in a lot of the Court’s cases and what we’ve seen for some years now is that, whether you are in the majority or the dissent, the arguments are originalist. If you look at DC v. Heller, a 2008 case where the Court ruled that the Second Amendment guarantees a right to personal gun ownership, Scalia wrote the opinion and the late Justice Paul Stevens dissented, but they were both arguing about what the text meant.

There was no discussion of what the Second Amendment should mean in a modern society or why we need guns if we have police departments. They both focused on what the framers demanded. The debate was on the same terms. That would not have necessarily been the case a decade or two earlier.

It’s a testament to the fact that originalists over the years were able to move the debate to their ground.

Aside from the policy and moral issues that many conservatives took with Roe v. Wade, what about its legal doctrine drew such ire from originalists?

The problem with Roe v. Wade from the beginning was that it was based on a right that the Supreme Court made up in 1973 without giving any thought to what the framers of the 14th Amendment intended. When it was ratified in 1868, there was no right to these procedures, and no one would have even considered it to be an issue. The Supreme Court basically said we will define what privacy means ourselves without much regard for what the text was intended or understood to mean when it was written.

Ultimately, I think there were a lot of streams that merged together that made Roe a major target. Some were originalists, some were social conservatives, some were looking to push back against some of the liberal orthodoxies that pervade the culture of our time. Those forces coming together at a common enemy, I think, is why it became such an important cause for legal conservatives.

While not an originalist complaint per se, a long held conservative one was that judges should not “legislate from the bench” and that they should use restraint. In Dobbs, none but the Chief Justice opted for an incremental path that would have upheld Mississippi’s law, but kept Roe in place. Why do you think his fellow conservative-leaning justices rejected this approach? 

The Roberts opinion in this case was incoherent. He said that the line of viability was arbitrary, and we can’t have this made-up line. But then he went and made up his own line based on when most women know they’re expecting, which was a higher standard, but it was also made up. He criticized the Roe Court for making things up and then did it himself.

I think the other justices didn’t approach Dobbs incrementally, not because they do not value restraint, but because they saw that there really wasn’t any middle ground in the case that made sense.

For decades, originalists’ approach to Roe was that the matter should be left to states. Do you think that with it now overturned, “natural law” conservatives and the “right to life” movement could potentially undermine that argument by advocating for national limits and bans?

I don’t know how much support the natural law arguments for widespread bans have and I tend to think that with Dobbs out of the way, that argument is going to lose steam. I think even in red states where there is a lot of support for much stricter time limits and restrictions, there might be a lot of political pushback against absolute bans. There are some conservatives who are celebrating now and advocating for that, but I’m not sure that’s a sustainable position. I think pushing for total bans could be problematic, but time will tell how this plays out in the political side of things.

In Makin and Kennedy, dissenters complained about what they saw as the majority’s exclusive focus on the First Amendment’s guarantee to the “free exercise” of religion, to the exclusion of the Establishment clause. Do you feel the Court’s majority has a clear originalist understanding of what unconstitutional “establishment” of religion looks like?”

I think it’s fair to say that the majority was not very clear on that point. You have to really look to the history to see how “establishment” of religion was traditionally understood, because it’s not defined by the text. Gorsuch, Alito, and Thomas basically said in Kennedy that what crosses the Establishment Clause line would be coercion and if you look at an issue like Coach Kennedy’s prayers after the football game, where there’s no coercion, there’s no problem.

Makin wasn’t really an Establishment Clause case and the six justices who said Maine could not exclude religious schools from the program basically just said that the funding was permissible without clearly explaining what would present a problem.

But these weren’t really the types of cases where the Court would have to answer those questions. Here you had the coach saying it was wrong to fire him for praying on the field and the schools in Maine saying that they shouldn’t have been shut out of the funding program. For the justices to have to define what is an Establishment Clause problem you would need the opposite type of case, say, where money was flowing to religious schools, or a coach was being allowed to pray and that was challenged by a secularist group. To answer that, they would have to define the limits of the clause.

Some felt that Bruen, the New York gun law case, betrayed a policy-driven agenda in striking down a state law. Additionally, some felt that Justice Thomas cherry-picked history to support his conclusion, whereas a purer originalist approach could have yielded a different outcome. What was your take on the decision?

I don’t think that Bruen was a terribly hard case. The idea that the Second Amendment only protects the right to have a gun in your home is a very constrained understanding. I think all the justices agree that the Second Amendment does govern outside of the home and then the question becomes, what constitutes “good cause” that justifies a concealed carry license? There is a lack of solid precedent on where that line is other than that the history shows us that if the government knows someone is dangerous, they could deny them a license. But I think that an absolute ban, or as in this case, having to show specific cause, goes too far.  

Critics of originalism have argued that the method is basically a cover for achieving conservative policy outcomes. How can originalism be defended as a legitimate legal doctrine rather than a costume for political goals?

Many times, conservatives have been happy with the outcomes, but not always.

More than that, there are some areas of law where originalist judges have pretty consistently reached liberal policy outcomes like when it comes to criminal procedure. Justice Scalia and now Justice Gorsuch used originalism and came out with decisions that had very liberal results for the rights of suspected criminals to confront their accusers and restrictions on searches and seizures. On free speech also and rights to public protests which are both traditionally liberal causes, these conservative judges have not reached very conservative results either.

Now, the fact that originalism often reaches conservative conclusions, especially on social issues, doesn’t shock me because they are working with a fairly conservative Constitution. It’s not surprising that modern-day progressive values are inconsistent with a document written over 200 years ago, right? So, it is logical why conservatives who prefer to conserve traditional values aligned themselves with a method of interpretation which hews as close as it can to the mores of the framers.

That approach works on moral questions, but how does it not run into a dead end when dealing with areas where the facts on the ground have changed, as with gun ownership, where the framers could not have anticipated assault weapons or modern urban centers?

Originalists do not see the Constitution as stuck in the 18th century. The text and its meaning are fixed, but its applications will adjust over time. At the time of the framing, they wrote with ink wells and quills. There was no Twitter … but no originalist will tell you that the Constitution has no bearing on the internet or social media.

So, yes, we have different types of guns than they did in 1789, but what Bruen tried to do was to look at muskets, pistols, and cannons from that time to draw analogies. Those types of comparisons might not always be perfect, but it’s the originalist’s task to study the reality the framers were addressing and use reason to apply it to the questions being presented today.

In what key ways do you think the ascendancy of originalist jurisprudence will affect the way judges weigh cases?

I think the biggest effect will be much more focus on text in history. That’s something that we saw very clearly in both the gun case and in Dobbs where the historical records played a major role in the conclusion the Court reached. These are subjects that more judges will place more emphasis on.

It’s the type of thing that as much as lawyers and jurists on the left might not like it, they don’t have much of a choice but to adapt. These Supreme Court justices are here, they’re mostly young, and will be here for a while.

Do you think the success record of legal conservatives will prompt legal minds on the left to try to turn the judicial tides back in their direction by creating a formidable competition to originalism, and its own version of the Federalist Society?

They’ve already been trying to do that for a while. The American Constitution Society is sort of a liberal clone of the Federalist Society, but it never became a vibrant intellectual force, I think because liberals tend to agree with each other. They have a tendency towards groupthink, and they basically accept the same premises. And if you’re not sufficiently woke, you get canceled; your thinking will be excluded from discourse.

Whereas within the Federalist Society, there are huge divisions. It’s a debating society more than anything else and that’s what’s made it a potent force.

Are you concerned that opposition to the Court’s dominance by originalists will provoke actions that could undermine the American system, like court-packing, elimination of the Senate’s filibuster, and the like? Do you feel judges should have an ear toward public opinion and moderate their decisions to gain broader acceptance?

It’s always a risk that elected officials could use the political process to expand courts or take other actions to undermine the system. But, if they want to destroy the Court, that’s on them, not me. I can’t control what they do, but I have to do my job and so do jurists.

I certainly hope judges are not listening to opinion polls, because if they are, the critics of the justice system have won. One of the most negative aspects of the Casey ruling was its statement that judges should weigh public opinion. Dobbs turned that around and said, “No, we aren’t supposed to care about what the public thinks, this is [about] what the Constitution says.”

In a way that was even more important than overruling Roe, because it said very clearly that judges are not going to be limited by what might satisfy the needs of the writers of The New York Times, but by what the Constitution says.