A Supreme Court Truly Devoted to Originalism Would Be Nice in the Face of Trump’s Lawlessness

The right-wing court’s decisions on hot-button issues show that it is not averse to radical activism to advance its political priorities

The Supreme Court of the United States

Since Donald Trump last left office, public trust in the U.S. Supreme Court has sunk to new lows, thanks to the politically charged rulings of the 6-3 conservative bench. The architect of the conservative majority’s alleged judicial philosophy of “originalism,” Justice Antonin Scalia, once said that “a good and faithful judge” must “resign yourself to the fact that you’re not always going to like the conclusions you reach.”

Now that the Trump Administration is facing upwards of 90 lawsuits, the Supreme Court is back in the center of an especially incendiary phase of American politics, as Trump and Elon Musk aggressively reshape the structure of the federal government itself.

Last week, two conservatives joined their liberal colleagues to reject the Trump administration’s freeze on foreign aid. But the fact that four conservative justices still thought that a president could simply refuse to spend congressionally appropriated and authorized funding without running afoul of the Constitution suggests that we can’t count on the doctrine of originalism to thwart this administration’s unconstitutional designs. In his angry dissenting opinion, Justice Samuel Alito claimed to be “stunned” that the majority would require the government to make good on its contractual obligations. He condemned in “emphatic” prose the lower court’s “unchecked power to compel the government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars.” This mystifying statement ignores that the power isn’t checked—the Supreme Court reviewed it—and that under Article III of the Constitution, judges (and justices) are charged with deciding “cases” and “controversies.” In Marbury v. Madison, the very first U.S. Supreme Court held that cases include those brought against Congress or the president.

In another case, the Court temporarily blocked Trump’s unceremonious firing of the head of an agency that protects federal whistleblowers. The U.S. Court of Appeals for the D.C. Circuit later sided with Trump under the standards that apply to motions seeking an emergency order. And yesterday Chief Justice Roberts rebuked Trump’s call to impeach the judge who ordered him to stop his illegal deportations of alleged Venezuelan gang members, without any due process, to El Salvador’s prison camps.

Still, given the right-wing majority’s pro-Trump track record in Trump-related litigation, it is reasonable to expect more wins for the president on the horizon. Not only has it shown a willingness to revise the doctrine of originalism but also to blithely ignore it when it suits the majority’s purposes.

One thing to keep in mind as these cases unfold, therefore: The current majority can no longer be described by the moniker “conservative”—despite its purportedly anti-activist philosophy of originalism, which is widely misunderstood.

What Is Originalism?

In theory, originalism attempts to divine the meaning of the Constitution at the time of its adoption in 1788, and treat it as authoritative for purposes of constitutional interpretation today. The rationale is that if the Constitution isn’t considered set in historical stone, judges will act arbitrarily and ideologically, grafting whatever interpretation they see fit in the moment. That is antithetical to the foundational premise of a government by the people. Originalism, in other words, is supposed to keep judges from overreaching beyond their constitutional power.

Yet the modern Court’s rulings on hot-button social issues—like abortion, gun control, and the separation of church and state—have felt decidedly radical to a majority of Americans. According to a Marquette Law School poll taken last month, 52% disapprove of the Supreme Court—a drop of nearly 18 points since 2021—and believe that the justices are motivated by politics, not law. By contrast, as recently as 2019, two-thirds of both Republicans and Democrats believed that the Court’s decisions were based on the law.

An even higher percentage—62%—disapprove of its shocking ruling in Trump v. U.S. last summer, which created broad immunity for presidents who commit crimes using the massive powers of the office. Sixty-three percent also disapprove of the majority’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which destroyed a woman’s right to terminate a pregnancy without governmental interference, which the Court had recognized as protected under the Due Process Clause for nearly 50 years. In his majority opinion reversing Roe, Justice Alito reached back to 17th-century England—before the United States even existed—for historical justification, while ignoring other laws that existed around the time of the Founding that tolerated abortion access.

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Justice Roberts Subverted the Separation of Powers and Created a Dangerously Unaccountable President

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During his time on the Court, Scalia insisted that democracy is “not about nine superannuated judges who have been there too long, imposing these demands on society.”

Most people, if asked on the street, would agree with this sentiment and the fundamental premise: Unelected federal judges should stay in their narrow job description of deciding individual disputes. They should not make national policy.

But both Dobbs and Trump suggest that this bench has all-but abandoned the conservative premises underlying originalism and those of its close cousin, textualism—which claims to adhere strictly to the black-and-white language of the Constitution and the law.

Originalism Is Hard to Do

A central question—and problem—with originalism has always arisen in identifying the source and meaning of the writer’s “intent.” The English nouns “intention” and “intent” come from the Latin intentio, which could refer either to an individual’s subjective purpose or to what an external observer would view as the purpose of a writing during a particular period in history. To this day, scholars have waffled on whether the “intent” or “intention” behind the language of the Constitution refers to the meaning that the drafters wanted to communicate or the meaning that contemporaneous readers would have found from the text.

And even under these two variants, there’s no telling which readers matter or what sources to utilize in ascertaining their understanding. In 1788, when the original Constitution was ratified, only wealthy white males could vote. A straightforward application of originalism would effectively hold that the viewpoints of women and people of color shouldn’t matter under a proper reading of the Constitution in 2025, including on matters of life-and-death that uniquely apply to one gender, as in the case of reproductive rights. Moreover, even as to the elevated white male’s perspective, records were sparse and non-comprehensive. What survives hardly constitutes a reliable or meaningful representation of the “true” intent behind the text of the original Constitution.

Meanwhile, the Constitution is chock-full of ambiguous language. What’s “reasonable” under the Fourth Amendment’s ban on unreasonable searches and seizures, for example, will depend greatly on the point of view of the particular reader.

Behind all of this is a doozy of separation-of-powers question: Who gets to decide when the Constitution is unclear? The Constitution itself contains no answer. Unlike federal judges, the president and Congress are elected by the people and thus accountable to their will. Arguably, their choices should matter. But in 1803, the Court ruled in Marbury v. Madison that it gets to have the final word on ambiguous constitutional language.

The Right-Wing Bench Is Just Making It Up

The result of all of these unknowns is that federal judges do the judging under our system of national government, which means they exercise lots and lots of discretion. Liberal judges do it and conservative judges do it. Both sets of judges are uniquely empowered to exercise judgment to choose between competing interpretations of the same text. There is not one “right” way to do that. To suggest that there is one way—the “originalist” way—is both misleading and dangerous, because it leads non-lawyers to believe that “conservative” judges are “better” than “liberal” ones.

The question becomes which tools to use to resolve the ambiguity. There’s no getting around this inevitability. In hard cases (which are the ones that make it all the way to the Supreme Court), resolving ambiguity becomes to some degree an exercise in subjectivity or preference regarding how to make that choice—precisely the kind of “judging” that conservatives purport to revile in progressive justices.

But in the immunity case, this is where the Supreme Court majority really showed its hand. Not only did it fail to apply an originalist lens to the powers of the presidency—which would have required acknowledging that the framers did not want unlimited power lodged in a single branch—but it departed from the language of the Constitution itself. This was a radical approach, not a conservative one.

Most lawyers aiming to understand the Constitution’s meaning start with the text itself. Take, for example, Article II, which states, among other things, that the president “shall take Care that the Laws be faithfully executed.” One need not be a constitutional scholar or historian to immediately realize that the word “Laws” encompasses legislation enacted by Congress, including criminal laws. We can all also probably agree that “shall” is not a word that leaves a lot of discretion in the president—the framers could have used “may,” but did not. So the president shall execute—meaning enforce—the federal criminal laws. And he must do so “faithfully.” Readers can disagree on what that word means, to be sure. It’s impossible for presidents to enforce every single violation of law; police officers don’t pull over every car that exceeds the speed limit on a highway, either. So “faithfully” must tolerate some picking and choosing between possible infringers of the law.

But here’s the zillion dollar question: Is it reasonable to construe the word “faithfully” to include the president committing federal crimes for his own personal benefit, using the very power of Article II gives him to execute the law? Does he faithfully execute the law in the commission of a crime that violates the very same law? As a matter of the plain language, to answer “yes” would defy logic. Still, that’s exactly what the majority reasoned in Trump v. U.S.—i.e., that in order to protect and preserve the president’s ability to act nimbly and without restraint on behalf of the American people, the word “faithfully” must somehow implicitly authorize the commission of crimes using the enumerated powers of law enforcement, the commander-in-chief power, the pardon power, and so on.

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The Roberts Court’s Presidential Immunity Ruling Has Lost Nearly Everyone Except for the Far Right

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Worse, Chief Justice Roberts in his majority opinion did not even bother to engage with this textual debate under the Take Care Clause. Instead, he basically reasoned that presidents need to make decisions without worrying about potential criminal liability down the line—a worry that could hamper their decision-making, which would be bad for the country. Roberts wrote that “[t]here accordingly exists the greatest public interest in providing the President with the maximum ability to deal fearlessly and impartially with the duties of his office.” Roberts thus made a normative, policy-based argument to justify manufacturing criminal immunity for presidents while ignoring how his reading conflicts with the text of the Constitution, which it’s his job to honor and uphold.

This is not “conservative” judging.

Liberal Judges’ Constitutional Reasoning

Bear in mind, too, that this is precisely the kind of reasoning that judges who lean more to the left have roundly been assailed for. But all good judges, conservative or progressive, begin with the text of the Constitution. When that fails to resolve the remaining ambiguity, progressives apply an alternative judicial philosophy called “purposivism,” which is also known as “functionalism” or what conservatives deride as “living constitutionalism.” The animating idea in this approach is that the choice between differing interpretations of ambiguous text should, at the very least, tether interpretations to the underlying purpose of document. So this approach, unlike originalism, does not try and divine the true intention of the Constitution’s individual drafters but it does not ignore the Constitution either. It instead aims to achieve its purposes, one of which is evident from the design of the separated powers: No more kings. The Trump majority sidestepped this obviousness.

Consider, too, the Due Process Clause of the 14th Amendment, which gave rise to abortion rights under Roe v. Wade. The theory behind that case was that the protection of “liberty”—which the clause expressly mentions, “nor shall any State deprive any person of life, liberty, or property, without due process of law”—means that there are certain rights that individuals carry around that the government cannot trounce, even after a trial or other kind of hearing. Liberty means freedom from government intervention into certain spheres of life.

In 1923, long before Roe, the Supreme Court extended this notion of liberty to recognize that individuals have the right to choose for themselves whom to marry (assuming of course that it was a marriage between the same sexes and races). Liberty, the Court stated, also covers parents’ ability to decide for themselves how to raise their own children, including whether to teach them a language other than English. Like abortion, neither of those rights appears anywhere in the Constitution’s text. To give liberty real meaning, however, the Supreme Court reasoned that the government must be constitutionally banned from interfering with these aspects of personal life.

In short, by looking at the ideals underlying the concept of “liberty,” a purposivist approach to constitutional interpretation resolves cases through the lens of the ideals or goals of American democracy. In doing so, the theory also constrains judges’ discretion to completely distort the text in ways that would threaten constitutional ideals by, for example, serving the justices’ own personal aims of greed, power, political party, or religion—or those of foreign interests, other politicians, corporations or billionaires.

Originalism Out, ‘History and Tradition’ In

But proponents of originalism have been extraordinarily successful in convincing the American public both to be wary of progressive judges who allegedly interpret the Constitution in accordance with their policy preferences without any internal limits and, conversely, that the “conservative” judicial philosophy limits the ability of unelected judges to revamp the Constitution arbitrarily. The accusation against purposivists is vastly overblown. Even in Roe, which critics on the right have long critiqued for “inventing” new rights, this approach was guided by precedent and the purposes behind protecting “liberty” under the Constitution.

Conversely, the notion that originalism imposes limits on judges by confining their charge to identifying the “original” meaning of a text in a manner that’s devoid of subjectivity is not true. Many times, all it does is help interpreters hide the true motives behind their choice. If the “answer” to a dispute is what the law was supposed to mean in 1788, then there’s no need to debate whether it’s a good policy choice today—even if its politics or ideology that actually lurk underneath.

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Congress Should Curb the Illicit Use of Pardon Powers by a Rogue President

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But when “originalist” approaches haven’t yielded the preferred policy outcome, the right-wing Supreme Court majority has jettisoned it in favor of something it calls a “history and tradition” test. This test doesn’t look to “original intent.” Instead, it glances across decades—if not centuries—of history to come up with some fragmented notion of what America has always been about. As noted above, the Court applied it in Dobbs, nonsensically reaching back to pre-American history.

This is an absurdly subjective exercise that’s dangerously unmoored to anything that restrains the justices’ discretion to revamp American life based on personal preference. In New York State Rifle & Pistol Association v. Bruen, the Court applied the “history and tradition” test but nonetheless held that a 100-year-old concealed carry law was not old enough to justify the city’s concealed carry regulations. In his majority opinion, Justice Clarence Thomas acknowledged that history and tradition included laws like the one the Court was striking down. But, he said, “not all history is created equal,” prioritizing the Founding-era history over other periods (Alito’s reliance on pre-Founding history in Dobbs, evidently, did not pose a problem). Thomas just chose to ignore those longstanding laws limiting gun possession over more permissive gun access laws, without any intellectually consistent way of telling future litigants, legislators, and courts which snippets of history and tradition would “count” and which would not.

The right-wing Court’s tendentious application of originalism in the immunity ruling and the arbitrary use of the “history and tradition” test in Dobbs and New York State Rifle & Pistol Association gives the impression that it is just making things up as it goes along. It is already clear that President Trump intends to make very robust, unprecedented, and illegal use of executive authority. At this stage, a dispassionate Supreme Court whose fealty is to constitutional checks and balances would be reassuring.

© The UnPopulist, 2025

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