Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. Our special coverage of the Supreme Court continues this week. As the justices weigh the remaining cases before them, competing doctrines of originalism and living constitutionalism will inform the decisions they ultimately reach. But what exactly are these interpretive methods? What exactly is originalism? Joining me to discuss is Dahlia Lithwick. She’s a lawyer, journalist, and a bestselling author. She’s also the host of Slate’s podcast, Amicus, about the law and the Supreme Court. Her recent series for Slate, how Originalism Ate the Law, delves into the history of that doctrine and its effect on the court, the law, and the public. Dahlia Lithwick, welcome back to the show.

Dahlia Lithwick:

It’s good to be back, Preet. How are you?

Preet Bharara:

I’m good. Are you enduring okay, in this time of constitutional avalanche of decisions?

Dahlia Lithwick:

I got to say I’m grumpier this year. This is my 25th term. The obvious reason is because the cases are all so terrible. But I think that I finally hit the end of the road with the whole pop out of a cake vibe of how the Supreme Court announces decisions, where they don’t tell us decision days and they don’t tell us what’s coming and they don’t tell us when the term ends. No other court does it this way. Other normal Supreme Courts are like, “Hey, next Tuesday we’re announcing Rahimi,” and then you can have a life. But this crazy refresh, refresh, refresh on the website. And then is it going to be Tuesday? Is it going to be Wednesday? Will there be a decision day? Will the term end on? Really? This is how soap operas go. This is not how the justice system works. So I find myself just a little tiny, tiny bit bored of the totally needless drama.

Preet Bharara:

So for that reason then, were you a little bit gratified that Dobbs leaked early?

Dahlia Lithwick:

I guess.

Preet Bharara:

Note to listeners. Dahlia Lithwick does not like mystery.

Dahlia Lithwick:

I don’t like mystery.

Preet Bharara:

And hence there was no mystery there. So I guess that a silver lining for you?

Dahlia Lithwick:

I guess. I think you’re right. It was very much like a circuit breaker from the general dunk tank where you just sit there and the Supreme Court throws stuff at your head and you end up in the water on every decision date. We knew. We knew what was coming with Dobbs. Yes, I like leaks. There it is.

Preet Bharara:

I like leaks. Like any good journalists, you like leaks. Okay, so can we start at a very, very basic level for non-lawyers and non-constitutional scholars? People talk about methods of interpretation of the Constitution. Why do we even need to have such a thing? Don’t the words speak for themselves? Or am I, by saying that sentiment itself, making reference, in a bastardized way, to a particular doctrine of interpretation? Why do we need a method of interpretation? And then we’ll get to the one that you’ve written about and did a podcast about in a moment.

Dahlia Lithwick:

Two things. One, words, of course, inherently have meaning and you can’t have law without widespread agreement about what words mean and how to think about words. But also the Constitution was, by design, written with some incredibly broad language. What is cruel and unusual punishment? What is due process of law? So the framers were trying to do two things at once. They were trying to use words and language with the kind of specificity that you’re assuming, right? This is what we always do when we write laws. But they were also trying to write a document for the ages that would, by design, have to grow and change as times grew and change. And so there are parts of the Constitution and, of statutes too, that are perfectly clear. And then there are other parts that are, by necessity, written in ways that are broad into which you can import meaning.

And so I think in some sense it’s interesting because, and we can talk about this or not, but it’s the same way people have been arguing about interpreting the Bible for centuries. There are camps that fight about how to read the words of holy text that map almost perfectly onto the fight that we have about interpretive methodology in the Constitution. And it’s just this age-old fight about how much do you get to import subjective meaning into language and how much are you living under the dead hand of the person who wrote it? And that’s the spectrum into which originalism falls.

Preet Bharara:

Yeah. So as you pointed out, our Constitution is a few pages long. It’s not 100,000 pages long. So there has to be some generality in the language used. cruel and unusual punishment. The right to keep and bear arms. Doesn’t that necessarily mean, then we’ll get to originalism in a second, doesn’t that necessarily mean that the founders intended for there to be future bodies, tribunals, supreme courts, and other judicial bodies to determine what falls within the ambit of that language and what doesn’t. They were literally leaving it to other people to give more content and specificity to that language? Is that fair?

Dahlia Lithwick:

Completely fair. And don’t forget, this was not a weeks, months, years long enterprise, right? This was like one sweaty run at it by a bunch of people who are all very grumpy and angry and this was their best effort to paste together language. Nobody at the time of the framing would’ve taken the position that every word selected that went into the document was the perfect language. It was understood that this was a series of battles and compromises and efforts to, in a very, very haphazard way, get down some back of the napkin ideas with the understanding, as you say, that as history went on, meanings would change and generations would read them differently. So unlike the Bible, which is ostensibly written by the hand of God and every word is perfect, nobody thinks, I don’t think, except originalists, that every single word of the text was precious and unerring and sealed in amber.

Preet Bharara:

So rather than first ask you what the doctrine of originalism is, I want to ask you about its origin. So by its terms, originalism most simply is an interpretive method where justices are supposed to use the original meaning of the words that were written, in that fashion as you described, at the founding. So am I correct that originalism, as a doctrine, also began with the founding and with the first Supreme Court decisions after the Constitution was ratified?

Dahlia Lithwick:

No, that’s why this is comedy gold, Preet.

Preet Bharara:

Wait a minute, what are you talking about? Originalism wasn’t the original? This is news to me.

Dahlia Lithwick:

This is audio Bambi eyes for your listeners. Preet is batting his eyelashes at you in sound. No, listen, I think one of the things that we said in this originalism package that we did, and I want to be clear-

Preet Bharara:

Okay, so maybe it wasn’t at the beginning, but 1800?

Dahlia Lithwick:

No.

Preet Bharara:

Originalism. Okay, wait, wait, I’m going to try again. I’m going to try again. 1825?

Dahlia Lithwick:

No.

Preet Bharara:

Okay. All right. Originalism certainly became a doctrine in the 1800s, right?

Dahlia Lithwick:

I’m going to commit to the bit because I can’t fight you. No, no.

Preet Bharara:

Okay. When did originalism come about and come into vogue?

Dahlia Lithwick:

Okay, now can I say my joke?

Preet Bharara:

Yes.

Dahlia Lithwick:

You have pants that are older than originalism. Originalism comes into vogue in the 19, at the earliest, flicks it in the 1970s and then in the 1980s and 90s. This is not a thing that goes… Originalism is not originalist. It is not a thing that goes back to the founding. It is not a thing that goes back to the reconstruction amendments. Throughout history, judges had a whole panoply of interpretative methods that they would pick and choose from. And it didn’t really come into vogue until the 80s and 90s. And it comes-

Preet Bharara:

Of the 1980s and 90s? Not the 1780s and 90s.

Dahlia Lithwick:

Yes.

Preet Bharara:

Can you explain, I’m going to let you mouth off about this at great length, don’t worry, but can you explain how it can be that conservative justices adhere to a doctrine of interpretation about which there is no history and tradition dating back to the founding when that is in some ways the very essence of their theory?

Dahlia Lithwick:

I think because this is not a theory, it’s not even a methodology. I’m going to go so far as to say it’s a religion. And it is a kind of ideology that gets imported into modern discourse as though it has existed forever. And because it has this patina of, “Oh, we are reverting back to the way things were,” the way you do that is you pretend that it has ever been thus. But there was no, you know this as well as I do, if you go back and you read Marshall Court opinions, there’s not a, we have to stick to the text in history and anything that strays from the text in history or nothing.

Preet Bharara:

You mean John Marshall, not Thurgood Marshall?

Dahlia Lithwick:

Yes, yes, yes. That unless there is a direct historical analog to some law, it is by definition unconstitutional. Right? That’s the animating theory of Bruen, the gun case from 2022. That’s just not an idea that existed at the time. And I think it’s really important. I’m going to say again because it’s the same trick you use with religious text, which is to say it has ever been interpreted thus, and you keep saying that over and over until people start to scratch their heads and say, “I guess originalism is originalist.” And it’s not. And I think that the idea that it is brand new is something that you and I and everyone else needs to keep reminding listeners because it’s got that fake aginess vibe that makes it seem authentic.

Preet Bharara:

Like the major questions doctrine, which we don’t have time to get into.

Dahlia Lithwick:

Also, not originalists.

Preet Bharara:

Can I ask you to do the following? Could you present, in the light as favorable as possible to the originalists, what they would say their decent doctrine of interpretation is?

Dahlia Lithwick:

I think that the light most favorable to originalists is, and this really does come from people like Robert Bork and Antonin Scalia, and I want to say people who took history seriously, and I think we credit them with that. And they were reacting, not so much to a problem of constitutional interpretation, they were reacting to a Warren Court that they felt was totally untethered from any methodology. So they were trying to come up with a theory of constraint.

They were trying to say that when the Warren Court plucks from the ether, the notion that the constitution has penumbras or the notion that Brown v. Board is grounded in constitutional history or that Loving versus Virginia is constitutionally correct, their response is that may or may not be right, but it’s not how we do law. It’s not what judges do. And I think that that is a fair critique. I think the critique that it seemed as though in the ’50s and ’60s and ’70s, the justices, in some cases, were, quote unquote, making it up as they go along was very anxiety producing. And so I think I want to say the most generous interpretation of what they tried to do in response was to cabin the sense that judges could just do feelings ball all the time. The irony, I’ll just end with this, is that now the originalist justices are the most feelings ball of all of us.

Preet Bharara:

As I told you before we began recording, I love your piece in Slate about originalism from a short while ago and further to what you said a second ago about the morphing nature of the so-called doctrine of originalism. You write this. “And the test itself keeps morphing. Original intent to original public meaning to text and history to history and tradition. Now tradition is under fire from the right because it might modernize the law a tad too much. So we’re due for another round of refinement. Having leapt seamlessly from text and meaning to history and tradition, one can only wonder what’s next, fish and chips? And then onto salt and pepper? The test for what counts as eternal and immutable history just keeps on evolving.” How do you argue with that?

Dahlia Lithwick:

How do I argue with myself?

Preet Bharara:

How does one argue? That seems to be very well put. What would, again, in the light most favorable to originalists be their response to your, I think, on-point critique?

Dahlia Lithwick:

I think that they would say that originalism as explained by Robert Bork or Justice Scalia or, on his best days when he tries to be fair, Clarence Thomas is very, very simple and all you do is try to figure out what the framers thought at the time. The critique that I have is that at one point it was, what did the words on the paper, what did they want them to mean? That’s original intent. Except as we said up top, lots of people come together and they have lots of different intents and you can’t possibly seal that in amber.

And so original intent falls away and then you get to original public meaning, which is what did people think when they heard the words of that text? But there are a lot of people and they had lots of thoughts and a lot of them had different thoughts. So that didn’t work. So then you move on to this crazy pants history and tradition, which is where we have landed now. And I just want to point out, we’re recording this on the day, in some sense, that the U.S. Supreme Court renounces the test that Justice Clarence Thomas sets out in Bruen. You need a historical analog from the time of the writing or it’s unconstitutional and literally reading the Rahimi opinion that comes out Friday, it’s almost like seeing a grownup rewrite their kids’ essay. Like Clarence Thomas wrote-

Preet Bharara:

To remind people, Rahimi is a case that was decided a few minutes ago. We’re recording this on Friday afternoon, June 21st. And it was a case very scrutinized and watched in which the Court decided 8-1 to uphold a firearm possession law that said, if you have an adjudicated restraining order in connection with domestic violence, you temporarily lose your right to possess the firearm notwithstanding the Second Amendment. In renouncing the Clarence Thomas rule, as you’ve just said, may we now pronounce originalism dead?

Dahlia Lithwick:

I want to be very clear. We did our originalism series at Slate and on Amicus, and I can just tell people it’s at slate.com/originalism. We did it in May. Waiting, waiting, waiting for Rahimi. Rahimi was, in some sense, the test kitchen because this is a case where, if you are going to take Clarence Thomas’s Bruen test from 2022, establishing at the time a constitutional right to carry firearms in public. But now, as I’ve said, essentially in Thomas’s writing saying that any restriction on the right to bear arms is presumptively unconstitutional unless it has historical analogs from the way, way, way back past.

Preet Bharara:

In this context, that can’t be because there’s no history and tradition going back to the founding of TROs in connection with domestic violence.

Dahlia Lithwick:

100%. Not just that Preet, but beating your wife was totally cool to the founders. One of the reasons this case was so emblematic of what was wrong with originalism is on its own terms, you are not going to find a law that says you should be disarmed for beating your domestic partner because, folks will remember, the rule of thumb, where does that language come from? You were allowed to beat your wife as long as the stick was the size of your thumb. That’s where it comes from. We didn’t start to have laws protecting women and children from being abused until relatively recently. And so Rahimi becomes the test case, in a deep sense of Clarence Thomas’s methodology, where you can look and look and look and look, you’re not going to find, as you said, anything from the founding or from the reconstruction amendments that say that you should be disarmed if you beat on your loved ones.

And the two things that I just want to say about this are, one, not only does it show that you cannot look to history as your only guide for what is constitutional, it blows up. As you said, originalism has to blow up in a modern society if the only rules you can look at were analogs from the founding. But in a deeper way, this absolutely proves that originalism seals in amber the power imbalances from the founding. Women couldn’t vote. Women couldn’t create laws. Women weren’t in Congress. And so the two deep, deep, deep tricks built into originalism are, A, looking back to history that they cherry-pick, and that’s what the Bruen opinion was. But more deeply, and this is the problem in Dobbs, you cannot say, “Well, women didn’t have a right to abortion at the framing, therefore there’s no right to abortion in the constitution,” because women had no agency or power to do anything but be objects at the framing. And so this re-instantiates a world in which some people have power and some people don’t. And that is very historical, but it is not constitutional.

Preet Bharara:

I want to go back to my question though. I mean this in a serious way. Does the fact that common sense required and reasonableness required and the public will have wanted this decision, that you can take away a firearm from somebody who has a TRO because they engage in domestic violence, beat up their partner. That that is an example of the proverbial dog catching the car. What is the intellectual way that originalist scholars and justices can defend, as they have been in the past, originalism when it fell in this case?

Dahlia Lithwick:

I think that the Roberts, the Chief Justice writes the opinion for the Court. It’s an 8-1 opinion. Unsurprisingly, the one dissenter is Clarence Thomas who is trying to prop up his test from Bruen. And I think Roberts tries to do a principled job of saying that the Clarence Thomas test from Bruen was way too specific. And so what he writes is, as he prunes back the meaning of Bruen to be something that you and I would agree seems more sensible, he writes, “Some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Of course, that’s exactly what they were meant to suggest, but he’s got to change it. And then he says, rather than hunting for the flawless one-to-one historical analog, courts need to start asking, “Whether the challenged regulation is consistent with the principles that underpin a regulatory tradition.” So what we’ve done is shifted from a one-to-one correlation between a perfect historical analog to a one-to-one correlation between something much higher level, which is principle, historical principle. And that’s how they get around it.

Preet Bharara:

What does historical principle mean?

Dahlia Lithwick:

Hell if I know, I guess we’ll find out.

Preet Bharara:

Does a reasonable and appropriate and legitimate and authoritative doctrine of interpretation necessarily imply some predictability or require some predictability or not?

Dahlia Lithwick:

I think it does. And it goes to when you have-

Preet Bharara:

What’s your critique of originalism’s part? You can cherry-pick any result or outcome you want based on these, so-called principles so it’s not predictive, but it should be.

Dahlia Lithwick:

It needs to be predictive. This is why we have law. And this is the dissent in, I think, the dissent in Dobbs is at its strongest, not on the particularity of abortion and what happens to Roe, but on why we need stare decisis and precedent. Why we need predictability and stability so we can organize our lives around broad, broad legal principles that don’t change when the composition of the court changes. That was the deal in Casey. That we can’t just go hither and yawn making new stuff up. So I think your question is exactly, I think it’s descriptively the right question which is, if we say that originalism is bunkum because they are cherry-picking history and because, by the way, judges aren’t historians, and we have seen in the two intervening years since Bruen, judges doing horrible history. Judges saying, “I guess I’m just going to hire a panel of historians to help me out.” And judges chucking up their hands and saying, “This is just cherry-picking and I can’t participate in.” And we’ve seen all of that.

But I think that the real answer is, if we want a theory of constraint, we want a theory of predictability, and we want a theory of interpretation that is not simply Justice Douglas thinks that penumbras, but we want something meaningful that we can all agree on. What can we agree on that isn’t fossilized history like originalism, but does create predictability and constraint? And I think I want to say that progressives have done a really crap job of selling any version of predictability and constraint and humility. And as a consequence, originalism has rushed into the void. It seems like it’s principled even when it’s not.

Preet Bharara:

We are still anticipating a big decision from the Supreme Court on the question of the former president’s immunity. Donald Trump’s lawyers have argued he has absolute presidential immunity. That case will not have been decided by the time our conversation becomes live on Monday, June 24th. But can we leave listeners with what the originalist argument is that Trump’s team has been advocating with respect to why Donald Trump should have absolute immunity?

Dahlia Lithwick:

There’s a couple in there dumb. The very dumbest that came up at oral argument was…

Preet Bharara:

Say how you feel, Dahlia.

Dahlia Lithwick:

The very dumbest that came up at oral argument was when Donald Trump’s lawyer said, “We know what the framers thought, and what they thought was that presidents have blanket immunity from criminal prosecution.” And we know that because Ben Franklin, I mean this literally, John Sauer, Trump’s lawyer, says a version of this. He puts it in his court briefs. And he literally says that Ben Franklin stated at the constitutional convention, quote, history furnishes one example of a first magistrate being formally brought to public justice. Everyone cried out against this as unconstitutional. And this becomes proof, he says, at oral argument that Franklin said this at the constitutional convention and everyone applauded, so it must be originalism. And I think in my piece, I called it standing O originalism. This is insanity.

Preet Bharara:

Here’s what you write because it’s very good. Call it perhaps standing O originalism. History demands absolute presidential immunity. Why? Because history shows that Ben Franklin said a thing and the crowd went wild. What more do you need?

Dahlia Lithwick:

It’s crazy, Preet. It’s crazy. And even if, and I would say this about both Anderson, the ballot initiative case where Colorado tried to knock him off the ballot, every historian in the country said, if you read section three of the 14th Amendment, this is clearly what it contemplated. We can fight about other stuff, but this is not hard historically and as a matter of originalism. And so what did the court say? They said, “Oh, originalism, we don’t do that anymore. Now we do purposivism. Now we just do the country can’t operate with that.

And I’m worried, from oral argument, we’re going to see exactly the same thing, which is there is no historical analog. There is no historical argument. We know, as Elena Kagan said, as the immunity case was being argued, that the framers could have immunized the president absolutely and chose not to. This is not a hard case if you’re an originalist. And so they’re going to do some other thing. And what worries me is not just that originalism is bad and judges aren’t historians and they cherry-pick, what worries me is the same people who purport to be originalists keep avoiding originalism whenever it suits them. And that was Rahimi…

Preet Bharara:

When it’s inconvenient.

Dahlia Lithwick:

… I worry. Exactly. I worry that that’s going to be immunity.

Preet Bharara:

On that note, Dahlia Lithwick, thanks so much for your time and your insight. Please come back soon.

Dahlia Lithwick:

It’s always fun, Preet. Thank you for having me.

Preet Bharara:

For more analysis of legal and political issues making the headlines become a member of the CAFE Insider. Members get access to exclusive content including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at (669)247-7338. That’s (669)24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández, and the Cafe team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.