Clarence Thomas’ originalist interpretations go too far, even for fellow conservatives

Originalism is a legal framework based on interpreting constitutional law as it would have been understood at the time it was written nearly 250 years ago — before the invention of electric lighting, indoor plumbing, and steam-powered trains.

Once considered a fringe theory created in response to perceived overreach by a liberal court, this method of interpretation — popularized by the late Antonin Scalia in the late 1980s — argues that only a formal Amendment ratified by Congress should be able to alter how we interpret the Constitution’s established rights and restrictions.

Legal experts who spoke to Business Insider said Thomas’s latest decision highlighted how inconsistent and even ridiculous this method of interpretation can be.

“This is a case where, if you invalidate this statute on the basis of originalism, you go back in time and say, essentially, at the time of the original ratification of the Constitution, domestic violence was tolerated — and therefore, based on originalism, we need to invalidate the statute,” John P. Gross, a professor at the University of Wisconsin Law School and director of the Public Defender Project, told Business Insider. “And that is, of course, an absurd, horrible result.”

Gross noted that originalism raises questions like whether women should be allowed to sit on the Supreme Court, because the nation’s founders wouldn’t have allowed it then.

“A strict originalist view could be that we shouldn’t have appointed women to the judiciary unless we get a formal Amendment saying women can be judges,” Gross said. “So that’s the kind of logical extension of originalism that leads to these truly absurd results. In that context, it’s very difficult to defend originalism as a useful, meaningful way of interpreting the Constitution.”

With originalism, ‘you get absurd results, and people will think you are a nut‘

Three legal experts told BI that Thomas is at least consistent in his framework for interpreting the law. However, this consistency in his thinking allows him to present arguments at odds with modern values that can sometimes contradict each other.

“This is a court that claims to be an originalist court and, if nothing else, these opinions establish that originalism is not a straightforward approach and does not lead to greater certainty, despite the claims that originalists make,” Carolyn Shapiro, founder of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, told BI.

Shapiro said originalism “can lead to different results depending on who is doing the analysis. It just simply does not provide the certainty that originalists claim.”

Thomas’ strict originalist interpretations in recent rulings, such as a unanimous decision in a trademark case earlier this month, have also begun to cause a fray among the other conservative justices. CNN reported Amy Coney Barrett, who identified as an originalist when she took the bench in 2020, accused Thomas in a recent opinion of having a “laser-like focus on the history” that “misses the forest for the trees.”

Thomas’ reliance on “history and tradition,” Barrett wrote in a concurrence that the court’s three liberal justices signed on to, “is wrong twice over.”

Thomas being the lone dissent in the case involving domestic abusers carrying firearms shows how committed he is to his originalist framework, even when the other conservative justices on the court clearly see the risk to society if SCOTUS doesn’t modernize its thinking, Gross said.

Gross noted that he expected the outcome the Supreme Court ultimately reached, though he was surprised Justice Samuel Alito, another strict originalist, didn’t join Thomas’ dissent.

“I think perhaps Alito’s absence from this opinion suggests that even he realizes, as Justice Scalia did at some point, that if you keep pushing these ideas about originalism, you get absurd results — and people will think you are a nut,” Gross told BI. “But Thomas is willing to go there. In terms of intellectual purity, great, I can’t say the guy’s wishy-washy, but even Alito’s not part of it — because he doesn’t want to be seen as a nut.”

Representatives for the Supreme Court did not respond to a request for comment from Business Insider.