DAVID GREENE, HOST:
When the country elects a Republican president and there's an opening on the U.S. Supreme Court, it's expected the president will nominate a conservative to fill that seat. The question is, what kind of conservative? There are different kinds of conservative judges, from the pragmatists to the originalists. Judge Neil Gorsuch, President Trump's nominee, is a self-proclaimed originalist.
NPR legal affairs correspondent Nina Totenberg reports on what exactly that means.
NINA TOTENBERG, BYLINE: The late Justice Antonin Scalia spent decades on the Supreme Court promoting originalism which he defined this way.
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ANTONIN SCALIA: The Constitution that I interpret and apply is not living but dead or, as I prefer to call it enduring. It means today not what current society - much less the court - thinks it ought to mean but what it meant when it was adopted.
TOTENBERG: Judge Gorsuch, who would succeed Scalia if confirmed, has a similar but less blunt way of putting it. In a 2016 speech, he declared that under our Constitution, while legislators should consider policy questions and moral convictions in shaping the law, judges should do neither. In interpreting the Constitution, he said judges should look to the text and meaning of the Constitution as it was understood when it was written in 1789.
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NEIL GORSUCH: The judges should instead strive to apply the law as they find it, focusing backwards not forwards.
TOTENBERG: Todd Gaziano of the conservative Pacific Legal Foundation explains originalism this way.
TODD GAZIANO: The text is the best evidence. And so if a phrase in the Constitution is unclear, we look to how that phrase was used in other contexts. Was it a term of art that people understood at that time? Or even occasionally, we look at dictionaries of the time.
TOTENBERG: At the announcement of his nomination last week, Judge Gorsuch cited as his first mentor in the law one of the justices he clerked for, Byron White. White, however, was a very different brand of conservative. He was a pragmatist, observes Allan Ides who also clerked for White and is now a professor at Loyola Law School in Los Angeles.
ALLAN IDES: Originalism is kind of odd when you think about it. It's I don't want the judge to think about the consequence of this decision, just about what would have been done 200 years ago. It's a peculiar theory that I think the public is attracted to because it sounds so simple and so true, but it's completely false.
TOTENBERG: Ides notes that Justice White was one of two dissenters from the Supreme Court's Roe v. Wade abortion decision. But he looked forward as well as back.
IDES: And if you read his opinion, part of it is very pragmatic - I don't think this is going to work; it goes way too far; it's going to have these consequences. Pragmatism - it can embrace a wide range of points of view. It's just that it's based on reality. So my objection to Gorsuch is I don't think he thinks broadly enough.
TOTENBERG: Conservatives, of course, aren't the only judges who look to the original meaning of the Constitution. Liberal judges do that, too. And they look at the text and structure as well. Indeed, when the Supreme Court ruled 5-4 that the Constitution guarantees an individual right to own a gun, both the majority opinion, written by Scalia, and the dissent cited historical records to make their case. Ides contends that both used history in an adversarial way to advance very different arguments.
IDES: But they're both plausible interpretations of the history and of the text. It just shows that it's kind of an empty technique. It pretends to be something it isn't.
TOTENBERG: He sees the conservative agenda on the court over the last 10 to 20 years as aimed at limiting the power of the federal government. And he adds that for the Trump administration and its aggressive use of federal and executive power, that could be bad news. If so, that would be the ultimate irony.
Nina Totenberg, NPR News, Washington.
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