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Key Takeaways
- Professor Morgan Marietta predicts a shift towards originalism in the Supreme Court's approach this term, marking a departure from 'living Constitutionalism' to an interpretation focused on the Constitution's original meaning.
- Recent appointments by President Trump have contributed to this shift, as Justices Gorsuch, Kavanaugh, and Barrett generally support originalism. Kavanaugh and Barrett both replaced justices inclined to 'living Constitutionalism'
- Cases on issues such as transgender rights, campaign finance, and voting are expected to reflect the polarization in society and the evolving debates on these critical topics.
The Supreme Court of the United States will continue to shift back to originalism this new term, a University of Tennessee civics expert told The College Fix.
Professor Morgan Marietta said the Supreme Court is undergoing a “constitutional revolution” as it moves away from the idea of a “living” Constitution toward originalism.
“The originalist shift is revolutionary in the sense of the dramatic change and broad ramifications for public policy, but it is not a new or unprecedented approach to reading our law,” Professor Marietta said via email.
This shift is “but a simple return to original meaning in principle,” he said. He has written several books about the Constitution and the Supreme Court. He previously served as the dean of economics, politics, and history at the University of Austin.
The civics professor had made a similar argument in The Conversation, where he noted the Court will be hearing cases on contentious issues such as transgender athletes, campaign finance, and race and voting.
“Until just a few years ago, the majority of justices would have agreed that the proper way to read the Constitution was as an evolving document, an approach usually described as living constitutionalism,” Marietta wrote. “The new majority reads the Constitution as an expression of enduring principles, which maintain their historical meaning unless the American people collectively decide to amend the document, an approach known as originalism.”
The change has occurred due to the three Supreme Court justices President Donald Trump appointed in his first term – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Both Kavanaugh and Barrett replaced justices who viewed the Constitution as living.
Professor Marietta told The Fix why he believes the idea of a “living” Constitution could lead to abuse.
“If a branch of the government can rewrite the contract on the grounds that it is ‘living’ or ‘evolving’ in a way determined by them, obviously that will lead to abuse of power,” he said. “If one side of a contract can rewrite the agreement, there is no agreement at all.”
A professor at the South Texas College of Law referred to the changes on the court as a “restoration” in response to questions from The Fix.
“The advent of living constitutionalism was the revolution, and the Supreme Court is slowly but surely aligning its doctrines with the Constitution’s original meaning,” Professor Josh Blackman told The Fix.
Both commented on the social issue cases in front of the Supreme Court. They include state-level prohibitions on gender-confused males competing in women’s sports and a Colorado ban on counselors helping same-sex attracted individuals address their inclinations, something called “conversion therapy.”
Marietta said such cases “seem to be the result of our division and polarization.”
“I think the nature of what cases the Court accepts simply reflects what important issues are brewing,” Blackman said.
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