My column today in the Post-Gazette

Bruce Ledewitz: Originalism is a mirage. Judges must exercise political judgement.

Special to the Post-Gazette

Nov 3, 2025

4:30 AM

Justice Amy Barrett writes in her recent book, “Listening to the Law,” that she is an originalist. She’s not. Neither are Justices Clarence Thomas, Samuel Alito, Neil Gorsuch or Brett Kavanaugh. Instead, they are common law judges, just like Supreme Court Justices have always been.

It’s easy to see this. In 2024, the court decided two of the most important cases in American legal history: the Colorado ballot case and the presidential immunity case.

The Colorado Supreme Court had removed Donald Trump from the ballot because Section 3 of the Fourteenth Amendment of the U.S. Constitution bars insurrectionists from office. The U.S. Supreme Court unanimously restored Trump to the ballot.

In the immunity case, the court granted presumptive immunity to Trump for almost all of his efforts to overturn the 2020 election.

Departing from principle

Originalism — the theory that the constitutional text must be interpreted according to its meaning at the time of its adoption — had clear answers in both cases. The Fourteenth Amendment itself bars insurrectionists from office. All that was left for the Supreme Court was to decide whether Trump actually was an insurrectionist. That question had no clear answer.

The framers of the Constitution did not anticipate much, if any, immunity for a former president. The text even lists bribery as a crime for which a president can be removed from office and later face prosecution. All the court had to do was get out of the way of Trump’s trial.

The so-called originalist justices did not even try to argue the original meaning of the Constitution in coming to their decisions.

Critics had an easy explanation for these rulings: The justices are originalists except where the interests of the Republican Party are concerned.

But that is not true. The liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Jackson — joined the Colorado decision that only Congress could bar a candidate from federal office under Section 3, despite the fact that the Fourteenth Amendment has always been self-executing. In addition, the same Chief Justice John Roberts who wrote the immunity decision went to extraordinary (non-originalist) lengths to save Obamacare.

Originalism is indeed a cover — not for right-wing ideology but for the exercise of political judgment.

Fooling us and themselves

A simpler explanation than partisanship for the ballot and immunity cases is that, like any common law judge, the justices decided the cases in ways that they thought did not conflict with the constitutional text and would be best for the country. 

Deciding whether Trump was actually an insurrectionist would have been perceived as tantamount to deciding the 2024 presidential election, whichever way the court went. It would have been regarded as intolerable judicial interference with democracy.

Allowing the Trump prosecution to go forward would absolutely not have kept Trump from being elected president. There was never enough time for the case to go to trial and for all appeals to be exhausted. If elected, Trump would have pardoned himself and then would have overseen indictments of former Presidents Joe Biden and Barack Obama.

We should be happy the justices are not originalists. Originalism would have been disastrous.

Why do the justices insist they are originalists when they plainly are not? Partly, they are trying to fool the public. If they admitted that they do what they think is best for the country as long as text and history allow it, their opinions would have to justify their decisions in those terms and they would have to defend this expansive role for the court. They could no longer pretend to be mere umpires.

But they may even be fooling themselves.

The Court’s next moves

Understanding the justices as common law judges makes it easier to predict how they will rule in the upcoming presidential power cases. For example, the well-respected originalist scholar Caleb Nelson published an article a few weeks ago that showed that Congress was originally understood to have the authority to limit presidential removals.

But Nelson admitted that this would have no effect on the court, because a majority oppose policy-making by the bureaucracy. Allowing Trump to fire people, on this understanding, enhances democratic accountability: It means elections have consequences. This will favor Trump now and Democrats later.

Even so, they’ll exempt the Federal Reserve because the consequences of not doing so would be disastrous.

The justices will not stop Trump’s extra-judicial military actions against drug runners. They didn’t stop Obama’s drone attacks against terrorists either. It’s a dangerous world, even if these presidential actions would have horrified the framers.

They are not going to stop the massive immigration raids anymore than they stopped Biden’s refusal to enforce immigration law.

However, this kind of common law reasoning also suggests they will side with criminal defendants Trump goes after and protect university free speech. They might chip away at tariffs.

And, maybe, having seen the consequences of telling politicians they can do whatever they want in congressional redistricting, they will use a little common sense and rein in mid-decade map-drawing.

Bruce Ledewitz is professor of law emeritus at the Thomas R. Kline School of Law of Duquesne University. He writes every other Monday.

First Published: November 3, 2025, 4:30 a.m.