The Supreme Court's Approach to Originalism and Common Law Constitutionalism

The U.S. Supreme Court is navigating its role in American democracy, particularly through its interpretation of the Constitution. Recent decisions have sparked debate about the court's adherence to originalism versus common law constitutionalism, especially in cases involving former President Donald Trump.

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Judicial review, a cornerstone of American constitutional law, allows the Supreme Court to assess the constitutionality of government actions. This principle has gained renewed attention as the court has recently ruled on significant issues that intersect with political dynamics, particularly those involving Trump.

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The current Supreme Court justices include Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts, who form a conservative majority. Justice Barrett has notably championed originalism, advocating for interpreting the Constitution based on its original meaning. However, critics argue that the justices often engage in common law constitutionalism, which incorporates broader judicial techniques and values.

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In 2024, the Supreme Court made pivotal rulings that influenced the political landscape. Notably, the court unanimously reinstated Trump on the Colorado ballot after he was removed due to allegations of insurrection, asserting that states cannot enforce the Insurrection Clause of the 14th Amendment without congressional approval. Additionally, the court established a high threshold for prosecuting former presidents, effectively granting Trump immunity for actions taken while in office. Critics contend these decisions deviate from originalism, suggesting partisanship among the justices. However, the unanimous nature of the ballot case complicates this narrative, as it included liberal justices.

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These rulings have significant implications for the future of constitutional democracy in the United States. The justices' decisions reflect a concern for the court's perceived role in the political arena, indicating that their judgments may prioritize the stability of democratic institutions over strict adherence to originalist principles. This raises questions about the objectivity of judicial interpretations and the influence of personal values on legal outcomes.

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Critics argue that the Supreme Court's decisions in these cases reveal a departure from originalism, labeling the justices as partisan actors. However, others suggest that the justices are simply exercising prudential judgment, aiming to safeguard constitutional democracy amid a politically charged environment. This divergence highlights the complexities of judicial philosophy and the challenges of maintaining public trust in the judiciary.

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The justices have not explicitly acknowledged their departure from originalism, instead maintaining the narrative that they adhere to constitutional text and historical context. This reluctance to confront the reality of their judicial philosophy may stem from a broader cultural skepticism regarding the objectivity of judicial values.

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• “But the law has always involved judgment.” — Bruce Ledewitz, Professor of Law Emeritus at Duquesne University

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• “The justices were just engaging in the common law technique of prudential judging.” — Analysis of Supreme Court decisions

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In conclusion, the Supreme Court's recent rulings illustrate a complex interplay between originalism and common law constitutionalism, raising critical questions about the nature of judicial interpretation and its implications for American democracy.

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