Cherry-picked history: Reva Siegel on “living originalism” in Dobbs

EVENT RECAP

“Dobbs is the product of originalism,” Reva Siegel, professor of law at Yale University, said last month. Few legal scholars would disagree. But for Siegel, the more interesting question is what originalism means in practice — and how it led to the elimination of the constitutional right to obtain an abortion.

Siegel explored those issues during the 18th Robert H. Jackson Lecture, an annual event featuring Supreme Court experts hosted by the Chautauqua Institution. This year’s lecture occurred on July 11 and was recently posted online.

There are two pictures of originalism, according to Siegel: an interpretive method, which ties the Constitution’s meaning to the past, and a political strategy, which was formed under President Ronald Reagan as a way to appoint judges who would carry out Reagan’s conservative views of the Constitution and social issues. Justice Antonin Scalia promoted the former as a framework that allows judges to separate cases from their own commitments, a “value-neutral method that will promote the separation of law and politics.” Siegel argued instead that the relevant originalism is “a value-laden politics, a multi-decade political project of the conservative legal movement embedded in the Republican Party whose announced goal is reversing Roe v. Wade.” 

Originalism in practice is a “living constitutionalism” that is “not forthright about its values, aims, and commitments,” Siegel said. The politics of originalism materialized (prior to the method of interpretation) as a reaction to decisions of the Warren and Burger courts that Reagan Republicans perceived as threats to “America’s traditional ways of life.” As a promise to “fix the problem,” Reagan campaigned on a platform that pledged to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” A version of this pledge has been present in the Republican platform ever since, according to Siegel. In 2016, Donald Trump campaigned with a list of nominees, screened by the Federalist Society, who would “automatically overturn Roe.” 

“Notice,” she said, “how this version of originalism is committed to goals and is not independent of views — it has an aim.” The differential treatment of Barack Obama’s nomination of Merrick Garland and Trump’s nomination of Amy Coney Barrett by Republican senators made their strategy clear. The court — “packed” with three Trump nominees — was now poised to act as “an instrument of Republican will at whatever cost to its legitimacy,” Siegel said.

But what of the opinion itself? Prior to Dobbs, the court interpreted the 14th Amendment’s guarantee of liberty in an “evolving way,” understanding liberty to include rights recognized by Americans in the 20th and 21st centuries, Siegel said. Justice Samuel Alito’s opinion in Dobbs instead defines liberty in reference to laws enacted in the mid-19th century, and uses a 19th-century campaign to criminalize abortion as context. But this historical analysis, Siegel argued, discounts common law in the late 18th and early 19th centuries, when there was access to abortion. In addition, it leaves out the crucial fact that “women were denied the vote,” and that the men who wrote the laws of the time “did not view women as full and equal citizens.” All this  led Siegel to ask: “Why should we defer to this history now?”

“There is no good reason,” she responded. This “backwards-looking analysis” is a “selective standard” that threatens to discredit many decisions — the right to interracial marriage, the right to contraception, the right to same-sex intimacy, the right to same-sex marriage — and ensures “judicial preference as the nation’s tradition.” This account of history demonstrates, for Siegel, that “a judge’s turn to the historical record can just as easily disguise judicial discretion as constrain judicial discretion.”