in a progressive direction. Warren’s tenure on the Court paved the way for a far-left legal activism that empow- ered future liberal justices to flout the Constitution and strike down laws that they found personally objection- able on dubious legal grounds. Described by scholars as “revolution- ary,” the philosophy of the Warren Court has had a monumental effect on how Americans perceive the law and how the judiciary seized the lawmaking powers of Congress. It was Warren’s jurisprudence, for instance, that empowered the Court to invent constitutional rights to abortion in Roe v. Wade and a laundry list of other leftist social transformation projects even though such “rights” had no basis in the law itself. The progressive legal theory champi- oned by Warren, as well as left-wing justices like Ruth Bader Ginsburg and Sonia Sotomayor, often goes by the name of “living constitutional- ism,” which suggests that the defini- tion of the Constitution and written legal statutes should change with the times or with whatever ideol- ogy is fashionable on the left at any given moment. This philosophy of “living constitu- tionalism” even empowered former Justice Anthony Kennedy, who was appointed by President Reagan, to cast the deciding vote in the 2015 case Obergefell v. Hodges , which forbade states from enacting laws that define marriage as a union between one man and one woman. As Justice Antonin Scalia observed in his famous dissent, Kennedy’s deci-
sion was based on “the mystical apho- risms of the fortune cookie.” Justice Antonin Scalia and the Rise of Originalism The opposing legal theory to “living constitutionalism” has been the jurisprudential methodology of originalism, which argues that the Constitution should be interpreted as written and read in light of what it meant at the time of its ratification. Originalism was brought into the mainstream by Justice Antonin Scalia and has since become the dominant legal theory on the right. Making laws and casting political judgments, Scalia maintained, was not the duty of a judge, but rather the duty of the American people through their elected representa- tives in Congress. “Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning,” Scalia said. “It is that rock to which the repub- lic is anchored,” he explained on another occasion. “If the Constitu- tion does not speak to a matter, it’s for the democratic process to provide an answer.” In other words, the Constitution is not a living document and it is not a vehicle for the Court to arbitrarily impose its own political will on the American public.
Donald Trump and the Court’s New Conservative Majority Prior to Trump’s election, Justices Clarence Thomas and Samuel Alito were the only reliable original- ists sitting on the High Court and “living constitutionalism” was the driving force behind the Court’s legal interpretation. But that all changed with Trump’s three appointments Justices Neil Gorsuch, Brett Kavana- ugh, and Amy Coney Barrett who handed constitutional originalists their first ever Court majority. The Court’s current 6-3 Republi- can-appointed majority has served as the main bulwark against the Biden administration’s brazen political and social overreaches and issued a series of landmark conservative decisions. In the years ahead, the Court is almost certain to add to its impressive reper- toire of conservative legal wins and should the Republican nominee win the presidency in 2024, the Court’s current 6-3 Republican-appointed majority could continue to grow.
Aaron Flanigan Aaron Flanigan is the pen name of a writer in Washington, DC.
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