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America gets first taste of an originalist Supreme Court 

Experts and justices alike are critiquing the conservative majority for an uneven application of their judicial philosophy. 

WASHINGTON (CN) — Following a deluge of blockbuster rulings from the U.S. Supreme Court, experts have likened the legal underpinnings of those decisions from the court's conservative majority to a revolution in constitutional law. 

Reading many of the court’s opinions this term, you’ll find the phrase “original meaning of the constitutional text” quite frequently. This phrase refers to the judicial philosophy known as originalism, which interprets the Constitution based on the original understanding at the time it was adopted. 

“The government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation,” Justice Clarence Thomas wrote in the majority opinion that struck down New York restrictions on who gets to carry a concealed weapon. “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

Thomas’ opinion in the gun case lays out an originalist framework for deciding if concealed-carry regulations violate the Second Amendment. This means that gun laws in 2022 would violate the Constitution unless they are analogous to gun laws in the 1790s. 

The same reasoning was used in the court’s decision that overruled Roe v. Wade and eliminated the federal right to abortion

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Justice Samuel Alito wrote. 

Originalism has percolated in legal circles for years, but experts say this is the first time in history a majority on the Supreme Court has adopted the philosophy. 

“Over the history of the United States Supreme Court, about six justices have taken the view that the Constitution should be interpreted as solely as it was understood at the time that it was adopted,” David Cole, the national legal director at the American Civil Liberties Union, said in a phone call. “So it's very much a minority view. There have been over 100 Supreme Court justices, only six took this originalist approach. Just so happens that five of the six are on the court today.” 

Constitutional law has previously understood the document in a more fluid manner. The Constitution was not limited to what the founders meant when they adopted it but instead understood as an open-ended document that could evolve with the country. 

“I think what the founders wanted us to do was to form a more perfect union, and that requires changing over time,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview.

Since this approach has never been applied by a majority of the court, there’s uncertainty about what the exact outcome will be. One thing that is clear to some experts is that this approach would completely upend the rights many Americans have come to enjoy. 

“If you took a strictly originalist view of the Constitution, segregation would be constitutional, women would not be protected by the Equal Protection Clause, much of the speech that we see as protected today would not be protected, juveniles could still be executed for their crimes,” Cole said. “It would be a true revolution in constitutional law.” 

This was born out just last week when the conservative majority restricted women’s reproductive rights. 

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” the Democrat-appointed justices wrote in a rare co-dissent

Many experts are questioning the justices' reasoning for adopting this approach. 

“Why should we be limited to how a problem was solved 200 years ago?” Cole asked. “What is the justification for saying that states today, dealing with a country in which there are 400 million guns, assault weapons and the like, that they have to be limited to what states and localities did in a very different time under very different circumstances when the Second Amendment was adopted? It just doesn't make any sense.” 

As the court has started using this philosophy to make major changes to American law, however, experts say the justices aren’t applying the approach evenly. 

“There are many, many constitutional cases decided this term where the court did not limit itself to what the Constitution was understood to mean when it was adopted but instead applied the evolutionary doctrinal approach that the Supreme Court has applied for the last 200 years, looking at past precedents and applying them to new circumstances,” Cole said. 

An example of this is the court’s decision that forced Maine to accommodate secular schools into its public education program funded by taxpayer dollars. 

“They don't cite any history around the time of the Establishment Clause showing that it was OK to support private religious education. And, in fact, the history is exactly to the contrary,” Cole said. “So they simply ignore history and instead they apply some recent precedents that they themselves decided.” 

Even some of the court’s own justices are calling out the conservative majority for their uneven approach. 

“The current Court is textualist only when being so suits it,” Justice Elena Kagan wrote in a dissent Thursday to the court’s decision limiting the regulation of carbon emissions by the Environmental Protection Agency. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”

While experts and some of the justices critique the majority’s application of originalism, the country is left to contend with the resulting rulings that are out of step with the majority of Americans. A Monmouth University Poll found that 60% of Americans disapprove of the court’s decision to overturn Roe v. Wade. An NPR/PBS NewsHour/Marist National poll found that 57% of Americans thought the court’s decision on Roe was politically motivated. This comes at a time when only 39% of Americans have confidence in the court. 

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