Last week, Justice Kagan spoke at the Catholic University of America’s Columbus School of Law, and she used her appearance to deliver a direct attack on originalism. The Framers, she told the colloquy moderator, Professor Joel Alicea, used “incredibly broad phrasing . . . . knowing that there would be change in the world.” She found “the whole project” of originalism to be “kind of misconceived, and . . . not a very good match with the Constitution we have.” She added, “That’s what I’ve always thought about originalism.”
Always, really? It did not sound that way when she declared during her 2010 nomination hearings that “we are all originalists.” Of course, she has made her hostility to originalism increasingly apparent since her confirmation, as I observed in 2022. Her alternative, as she discussed last week, is what she calls “common law constitutionalism,” focused on precedent, with cases decided to “fit within that precedent.” She considers this “a system of humility,” with the law moving incrementally “step by step rather than” in “big jumps and leaps.”
The trouble with rejecting originalism is what takes its place. Kagan insisted the Framers were “writing a Constitution for the ages,” but a Constitution endures for the ages precisely because its meaning does not change with every new social trend or shifting elite opinion. The Framers prescribed a mechanism for change: the amendment process laid out in Article V, not unilateral reinterpretation by a majority on the Court. Cut the text loose from its original meaning and, as Alicea pointed out, it is judges who decide what it means now. Asked whether progressive constitutional theory is any more constrained or coherent, she replied, “No. I agree with you completely.”
That is not the only problem: Justice Kagan does not practice the method she preaches. A genuine common-law judge gives the same deference to precedents she dislikes as to those she favors. Kagan invoked “the wisdom of the ages” to defend precedent in the same conversation in which she dismissed the original meaning of a Constitution written “for the ages.” Apparently the ages are authoritative only when they speak through her predecessors on the bench, not through the people’s representatives who proposed and ratified the text.
Her record bears this out. Dissenting in Dobbs v. Jackson Women’s Health Organization (2022), she and her colleagues stressed that Roe v. Wade had stood for nearly 50 years and that Americans had built their lives around it. Yet when she was in the majority, the clock mattered less. In 2015, she did not hesitate to join the Court’s sweeping redefinition of marriage in Obergefell v. Hodges, overruling the almost 43-year-old Baker v. Nelson. In several sentencing cases, she joined the Court in overruling precedent: Alleyne v. United States (2013), which overruled an 11-year-old case; Johnson v. United States (2015), which overruled precedents decided only four and eight years earlier; and Hurst v. Florida (2016), which overruled two 1980s precedents that had upheld Florida’s capital sentencing scheme. And in Herrera v. Wyoming (2019), she joined a decision repudiating Ward v. Race Horse, a precedent on tribal hunting rights dating back to 1896.
Kagan’s quarrel with Dobbs is not over whether precedents should fall, but which ones. While during the colloquy she faulted the Warren Court for not being “incremental enough,” Roe notoriously outdid the Warren Court in hubris as it swept aside the abortion laws of nearly every state in favor of a made-up rule. Her caution about big jumps seemingly only applies to jumps she dislikes.
Last term in Wolford v. Lopez, where the Court rejected Hawaii’s brazen attempt to evade the Second Amendment test of New York State Rifle & Pistol Association v. Bruen (2022), Justice Kagan dissented. She was the one dissenter not to join Justice Jackson’s dissent explicitly rejecting Bruen, but she agreed with Jackson’s conclusion, and an application of Bruen that would have upheld Hawaii’s law shows little real adherence to it.
Justice Kagan seems unwilling to make peace with a number of election law precedents. As solicitor general, she argued and lost Citizens United v. Federal Election Commission (2010). As a justice, she joined a dissent in McCutcheon v. Federal Election Commission (2014) blasting Citizens United, and last week she again attacked the Court’s framework in campaign finance cases, complaining that the Court “never seems to see the opportunities for” corruption. She described National Republican Senatorial Committee v. Federal Election Commission from last term as “part of a long string of the Court basically getting rid of one after another . . . of campaign finance restrictions.” She called the line from Shelby County v. Holder (2013) to last term’s Louisiana v. Callais “the evisceration of the Voting Rights Act” and “a long-standing project.” Weeks after Rucho v. Common Cause (2019) soundly deemed partisan gerrymandering claims nonjusticiable, Kagan declared, “There’s no part of me that’s ever going to become accepting of the decision made,” and last week, she called her Rucho dissent her favorite.
Her complaints about the consequences of these rulings are just as selective. Kagan charged that the majority has “blinded itself to the very deleterious effects of their rulings” and lamented a gerrymandering “race to the bottom.” But as James Piereson points out, the justice who decries partisan gerrymandering dissented in Callais in defense of Louisiana’s Sixth Congressional District, a sliver drawn some 250 miles from Baton Rouge to Shreveport to capture enough black voters. “[R]ace-based districting,” Piereson notes, “is itself a form of partisan gerrymandering,” since “[a] majority-black district is a Democratic district, as Justice Kagan knows perfectly well.” Her objection, in effect, is to gerrymanders that cut the wrong way.
Originalism does not promise that judges will never err. It promises a standard outside the judge’s own preferences by which legitimate lines can be drawn. Justice Kagan described the Constitution as “indulg[ing] in many hazy generalities.” Her alternative leaves those generalities to be filled in by judges according to their preferences, with precedents consigned to their own haze of situational observance. Justice Kagan and so many other judges would do better if we truly were all originalists.