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Originalism threatens to turn the clock back on race

Supreme Court nominee Amy Coney Barrett speaks during

Supreme Court nominee Amy Coney Barrett speaks during a confirmation hearing before the Senate Judiciary Committee on Wednesday on Capitol Hill. Credit: AP/Michael Reynolds

The death of Justice Ruth Bader Ginsburg has ignited a bitter confirmation fight assured of further dividing our fractured republic only weeks before an enormously consequential and chaotic election.

President Donald Trump's selection of the 48-year-old conservative Amy Coney Barrett to replace Ginsburg leaves conservatives poised to have a six-three court majority for decades. At stake is not only the future of the Affordable Care Act and reproductive rights, but the survival of the Warren Court's landmark civil rights jurisprudence that finally breathed life and vigor into the constitutional guarantees of freedom, liberty and justice for all, regardless of race, ethnicity and gender. This contentious debate on the future of the Supreme Court and civil rights is transpiring amid a long, overdue reckoning on the country's racist past, and the structural racism that still undergirds American society.

The Warren Court was an anomaly in the otherwise conservative history of the Supreme Court. Under Chief Justice Earl Warren, between 1954 and 1969, the court abandoned its historical role of ruling on behalf of the wealthy and powerful. Indeed, it was not until Brown v. Board of Education in 1954 that the court finally declared racial segregation in public schools unconstitutional. African Americans and civil libertarians extolled the Warren Court for not just this decision, but for expanding the constitutional rights of defendants, ensuring the concept of "one person and vote" and paving the way for legalized abortions by finding a right to privacy in the Constitution.

But the Warren Court's rights revolution triggered a backlash among conservatives and former segregationists. The right decried these decisions as "judicial tyranny," cases in which unelected judged defied the will of the people by imposing policies such as busing, prohibiting prayer in public schools and requiring criminal suspects be advised of their rights before interrogation. Conservatives charged the Warren Court with inventing rights, such as the "right to privacy," and called for a return to the style of "judicial restraint," which had long preserved White supremacy and the power of economic elites.

While Richard Nixon pledged a more conservative court and chose the "law-and-order" champion Warren Burger to replace Earl Warren, only one of Nixon's four appointees to the court, William H. Rehnquist, satisfied conservatives yearning to overturn the decisions of the Warren Court. Conservative anger over the court spilled over after one of Nixon's appointees, Harry Blackmun, authored the blockbuster Roe v. Wade decision that conservatives would eventually excoriate as judicial tyranny unmoored from the Constitution.

Ronald Reagan's landslide victory in 1980 electrified conservatives eager to exorcise the ghost of the Warren Court. Reagan crafted a coalition composed of grass-roots evangelicals and conservatives who elevated the issue of remaking the federal courts to the forefront of the conservative agenda. Wholesale judicial change became the watchword of Reagan's Justice Department, and pushing this transformation became a means of satisfying cultural conservatives, disappointed by a lack of policy wins.

In 1982, with the support of Reagan's ideological ego and top adviser Edwin Meese, a consortium of students and conservative law professors formed the Federalist Society to provide a conservative counterweight to the predominantly liberal legal academy. As part of their plan to overturn the Warren Court's expansion of civil rights, the Federalist Society invested in supporting a conservative network of lawyers, law professors and judges who would adhere to an "originalist" or "literal" interpretation of the Constitution based on the original understanding of the Founders at the time they drafted the Constitution in 1787 (and the drafters of each subsequent amendment). "Originalism" or "textualism" furnished conservatives with an intellectual basis for overturning the constitutional innovations of the Warren Court. Advocates of textualism and originalism saw the philosophy as a way to hamper judges from inventing new, controversial rights or expanding others that the right disliked.

From the outset, however, critics flayed originalism as a fringe constitutional doctrine inadequate to address the requirements of a complex, pluralistic society and insisted that the Constitution was a "living document." Even moderates like Justice John Paul Stevens inveighed against originalism as a simplistic, stubborn dogma based on a frozen view of the Constitution. Others such as Blackmun and Justice William Brennan, as well as constitutional scholars highlighted the difficulty, if not the impossibility, of divining the intent of the drafters of deliberately opaque terms such as "due process," "probable cause" and "equal protection."

For African Americans and their civil rights allies, originalism was particularly abhorrent. After all, the Founders embedded slavery into the fabric of the Constitution, reflecting their prejudices and moral blind spots. Largely drawn from the landed class, the Founders had little interest in empowering the common man, and no interest at all in empowering women and Black people. On the bicentennial of the Constitution, Justice Thurgood Marshall, the first African American on the court, reminded Americans that the Founders never intended to abolish slavery, and asserted that the Constitution did not contain "profound wisdom, foresight, and sense of justice."

In 1987, Reagan's nomination of Robert Bork, the foremost apostle of originalism to replace the moderate Justice Lewis Powell, spotlighted fears that "originalism" was a smokescreen for the diminution of minority rights. Notably, Bork had raised the ire of the civil rights community since penning a 1963 editorial opposing the public accommodations section of the Civil Rights Act. Siding with segregationists, Bork wrote that coercing business owners to serve members of minority groups would enact into law a principle of "unsurpassed ugliness."

In the ensuing decades, Bork left civil libertarians aghast as he deployed originalism to denigrate virtually every significant Supreme Court decision that extended civil rights protections to African Americans. Bork criticized the court's 1948 unanimous Shelley v. Kraemer decision that barred enforcement of racially restrictive real estate covenants on the grounds that they were not covered by the 14th Amendment; issued a blistering attack on the court's 1966 decision banning literary tests for voting; and lambasted the court for striking down Virginia's poll tax on equal protection grounds, which he derided as the "Equal Gratification" clause. With respect to Baker v. Carr, which banned the malapportionment of legislatures ensuring that African Americans got representation, Bork suggested that Chief Justice Warren was unable "to muster a single supporting argument."

The Bork nomination sparked a national conversation about the Supreme Court. A broad coalition of civil rights groups led the successful fight against Bork. The Senate voted 58-42 to reject his nomination with even some Republicans, like Arlen Specter and John Warner, viewing Bork's reliance on "originalism" with disdain.

Nonetheless, Bork and his supporters remained defiant. His defeat was merely the opening salvo in conservatives' long battle to pack the federal courts with originalist judges. As the conservative movement drifted rightward and judicial nominations and conceptions of the ideal judge only grew more polarized, "originalism" became a catechism among a new generation of judicial conservatives including Associate Justices Clarence Thomas, Samuel Alito and Neil M. Gorsuch.

A focus on textualism and original intent has played a part in the court eviscerating the Voting Rights Act, known as the "crown jewel" of the civil rights movement, which has led to a raft of voter suppression laws targeting people of color. The conservative justices have also consistently used the philosophy as a cudgel to crush labor unions, curtail environmental regulations, allow the wealthy to spend unlimited amounts of money to buy political influence and further conservative outcomes on 21st-century issues like regulating assault weapons and global warming well beyond the purview of the Founders' 18th-century world.

With Trump's nomination of Barrett, the Federalist Society is on the verge of fulfilling its dream of overhauling the civil rights jurisprudence of the Warren Court. Given originalist judges' consistently cramped view of civil rights, African Americans, Latinx, women and the LGBTQ community have legitimate grounds to fear an imminent assault on their civil rights at a moment when the country is already undergoing a national reckoning with our racist legacy.

Yet, this reckoning raises serious doubts about relying on the intent of the Founders, or even the authors of the post-Civil War amendments, to determine what constitutes rights in 2020. Enshrining an originalist majority on the court would be the opposite of recognizing the flaws of our past. If anything, it would make them harder to fix.

Daniel S. Lucks, an attorney, holds a PhD in history from the University of California at Berkeley. He's the author of "Reconsidering Reagan: Racism, Republicans, and the Road to Trump." He wrote this piece for The Washington Post.

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