Federal Courts and Nominations

Analysis: How Justice Ruth Bader Ginsburg Viewed Herself as an Originalist

Judge Barrett calls herself an originalist, and during her hearing Tuesday she said that while the judicial method was popularized by such conservative figures as former Attorney General Edwin Meese and the late Justice Antonin Scalia, it isn’t a legal approach held only by conservatives.

“There is a school of originalism that’s more of a progressive originalism and is very committed to keeping the Constitution’s meaning, just interpreting texts the way all originalists do, to say that it has the meaning that it had at the time that it was ratified, but they tend to read it at a higher level of generality,” she said, responding to questions from Sen. Ben Sasse (R., Neb.). Judge Barrett singled out a left-leaning advocacy group, the Constitutional Accountability Center, for its legal briefs based on the originalist method.

Conservative originalists generally tend to see the Constitution’s spare text as excluding rights not explicitly identified; progressive originalists more often look to give life to the Constitution’s broad promises that haven’t always been reflected in reality.

The late Justice Ruth Bader Ginsburg, a liberal icon whose seat Judge Barrett is seeking, refused to cede the originalist ground to the right.

“I have a different originalist view,” she said at a 2011 legal conference. “I count myself as an originalist too, but in a quite different way,” than critics such as Justice Scalia, who argued the 14th Amendment’s equal-protection clause didn’t protect women. “Equality was the motivating idea, it was what the Declaration of Independence started with but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said.

Justice Hugo Black, a Franklin D. Roosevelt appointee and one of the leaders of the liberal Warren Court, is considered by many a progenitor of such text-based interpretative methods like originalism. His opinions often sought to enforce civil liberties that had been honored more in the breach than in reality.

The modern embrace of originalism may have more to do with the jurisprudential realities of a right-leaning Supreme Court, where framing an argument in a vocabulary that conservatives find comfortable is a practical necessity.

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