We Are All Judicial Imperialists Now

“We’re all originalists now,” Elena Kagan famously proclaimed in her 2010 confirmation hearing. Kagan’s statement sent shock waves through the legal world, as it signified a changing constitutional landscape. At the time, originalism—the legal theory holding that the Constitution should be interpreted according to its original meaning—was still a fringe legal theory, with only limited support in the federal judiciary and the legal academy. For a liberal like Kagan to identify as an originalist was almost unthinkable.

Kagan’s statement thus signaled that something was changing. Originalism was becoming mainstream. And legal conservatives started to celebrate the possibility of a bigger victory.

This possibility started to look like a probability when, in the following year, Jack Balkin, a prominent Yale Law School professor who runs an influential liberal legal blog, published “Living Originalism” (2011). In this book, Balkin explained why he, like Kagan, considers himself a liberal originalist. According to Balkin, originalism, at least a particular variety of it, can be deployed for progressive political ends.

In her 2022 confirmation hearings, Ketanji Jackson followed Kagan’s lead by also identifying as an originalist. At this point, it seemed clear that originalism had won, as evidenced in how Georgetown law professor, Randy Barnett, one of the nation’s leading originalists, proclaimed that Jackson’s statement represented “the Triumph of Originalism.” In Barnett’s words, Jackson’s identification as an originalist worked to “legitimate[] originalism” by “affirm[ing] that [originalism] is the norm” for constitutional interpretation.

But not all members of the legal left were willing to jump on the originalism ship. Legal journalist, Dahlia Lithwick, for example, alleged that liberal seduction into the originalist movement was a conservative “trap,” designed to sap constitutional law of its progressive promise. Similarly, Washington Post columnist Ruth Marcus warned (in an article entitled “Originalism is bunk. Liberal lawyers shouldn’t fall for it”) that the legal left should not join the movement because originalism will be used only to advance conservative causes.

This was essentially the state of the legal discourse on the left in 2022. Important figures within the legal left were identifying (albeit somewhat tentatively) with originalism while other liberals were warning their intellectual compatriots not to join the growing trend.

But then the court decided Dobbs v. Jackson Women’s Health Organization (2022), eliminating the constitutional right to abortion by overruling Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). And all of a sudden liberal interest in originalism collapsed.  

A Shift in the Outrage Cycle

There is a cycle to political analysis and media coverage surrounding the Supreme Court. This cycle starts in the fall when the Supreme Court reconvenes after its summer break and begins deciding which cases it will grant certiorari (i.e., which cases it will hear in its new term). Lawyers, scholars and pundits then spend the winter analyzing all the ways that these cases will and should be argued and decided. At the start of the summer, when the Supreme Court’s term ends, it typically releases its most important and contentious opinions. Recently, due to the court’s current composition, many of these decisions have been right-leaning. So the year’s cycle ends with the left-leaning media outlets and pundits spending the summer months expressing outrage toward the court and condemning its decisions as legally illegitimate and politically unpopular. The cycle then starts over again in the fall.

Before the Dobbs decision, most of this outrage dealt with originalism. But after Dobbs, the outrage shifted to condemning what critics of the current court call “judicial imperialism.”

This shift was highlighted in Adam Liptak’s lengthy 2022 New York Times article, entitled “An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars.” In that article, Liptak surveyed how several scholars have recently sounded the alarm that, in comparison to past Supreme Courts, “the current court is distinctive” in that it “has rapidly been accumulating power at the expense of every other part of the government.” This consolidation of power, Liptak explained, is the hallmark of an imperial court.

Liptak’s essay focused in particular on Stanford University law professor Mark Lemley’s 2022 Harvard Law Review article, “The Imperial Supreme Court,” in which professor Lemley concluded that the current Supreme Court is distinct because it “has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments,” as past conservative Supreme Courts have done. By contrast, Lemley wrote, the current court “is withdrawing power from all of them at once.”

Lemley’s “judicial imperialism” argument has become the standard mode of left-wing criticism of the Supreme Court, and was highlighted in the most recent left-wing outrage over the Supreme Court.

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the so-called Chevron doctrine (i.e., the doctrine laid out in the 1984 ruling, Chevron v. Natural Resources Defense Council), granting administrative agencies broad discretion in how they administer the powers given to them by Congress. The Loper Bright decision enraged the legal left, leading University of Pennsylvania law professor Kate Shaw, for example, to argue that the decision is an illustration of “The Imperial Supreme Court.” In her essay, professor Shaw invokes Lemley’s “judicial imperialism” argument in contending that, since the Dobbs decision, the court has been expanding its own authority at the expense of other political institutions, thus rendering the Supreme Court the central political power in our Republic. Even though Loper Bright and Dobbs have little to do with each other—in that one has to do with limiting administrative discretion, and the other has to do with granting states discretion over abortion and other moral issues—both decisions, according to Shaw, “grow out of the same ideological project of conservative legal transformation and reflect similar hubris, recklessness and retrograde constitutional vision.” Moreover, Shaw writes, both decisions “involve overturning precedents and shifting the law in undemocratic directions.” Professor Shaw concludes the essay by explaining how the Loper Bright decision is part of “a key project of this Supreme Court — the expansion of the power of the court and its corollary, the disempowerment of other entities,” so that the court “alone will continue to make the most important decisions in our national life.”

But this “judicial imperialism” scholarship overlooks two key points. One is that many of the decisions that these scholars have identified as part of the court’s imperialism do not actually expand the court’s power at all. For example, Lemley alleges that the current Supreme Court has departed from the tenets of judicial conservatism in that it has not been about “favoring states over the federal government” (as the Rehnquist Court often did during the 1990s) or about “the rights of people over governments” (as constitutional libertarians often favor). In Lemley’s view, this court has been driven by the bare desire to enlarge its own power, at the expense of both state authority and individual liberties.

This is clearly not true. The recent Harvard and UNC affirmative action decisions, for example, are about expanding individual rights—namely, the right to be free from government-sanctioned and government-funded racial discrimination. Likewise, the Roberts Court’s various religious liberty cases have been about expanding the individual right of free conscience. Likewise, its various Second Amendment cases have been about affirming the individual right of self-defense.

Many liberals, of course, do not like these rights, and do not think they should be judicially protected. But that doesn’t mean they are not about “the rights of people over governments.”

Similarly, the crucial case in this recent “judicial imperialism” literature is Dobbs, but it is difficult to see how Dobbs is an expression of the Supreme Court’s imperialism. To the contrary, the Dobbs decision limited the Supreme Court’s authority by returning abortion to the states, which had been the locus of power on all such moral matters from the Founding until 1973, when the court usurped that power in Roe. Viewed in this light, it is hard to see how professor Lemley could be right that Dobbs was about enlarging the Supreme Court’s power and not about “favoring states over the federal government.”

But an even more fundamental blind spot in the recent “judicial imperialism” literature is that this court is actually much less imperialistic than past Supreme Courts, particularly the Warren Court of the 1950s and ’60s.

The Origin of Judicial Imperialism

The Warren Court—that is, the Supreme Court under Chief Justice Earl Warren’s 1953-1969 tenure—is the single most important example of the court transforming our constitutional order by empowering the federal judiciary at the expense of state and local governments. For example, the Warren Court issued a series of decisions that revolutionized law enforcement policies by overseeing criminal interrogations through the Miranda doctrine, extending the Fourth Amendment to state and local governments and creating the exclusionary rule out of the Fourth Amendment (the rule that evidence obtained in violation of the court’s understanding of the Fourth Amendment may not be admitted as evidence in trial). The Supreme Court’s oversight of local law enforcement policies and state court evidentiary standards was entirely unprecedented.

Likewise, the court under Chief Justice Warren transformed local public education by, for example, holding that school prayer (a pervasive practice at the time) was unconstitutional (even if students were not coerced to participate in the practice) and mandating that evolution must be taught as a part of biology. As part of its civil rights agenda, the Warren Court required racial quotas in public schools throughout the South, even after public schools were no longer discriminating on the basis of race. Again, this massive control over local education was entirely unprecedented before the Warren Court.

The Warren Court also was the first Supreme Court to say that there are matters of sexual decision-making outside of a state’s authority. This was an unprecedented infringement on state police powers, as it made the Supreme Court the ultimate authority over which moral questions are within a state’s domain. This doctrine of course led to the creation of new constitutional rights, such as the right to obtain an abortion and to marry someone of the same sex.

This was truly a constitutional revolution in that it took a constitutional system based on a vertical division of powers between the federal and state governments (what we call “federalism”) and a horizontal distribution of powers within the federal government (what we call “the separation of powers”) and consolidated all of that authority within the federal government, subject to the Supreme Court’s evolving understanding of what that authority includes under the Constitution. In other words, the variegated power provided under the Constitution was consolidated into a singular national power, and that national power was subsumed under the Supreme Court’s evolving understanding of what that national power entails.

Nevertheless, the modern-day scholarship on the Roberts Court’s judicial imperialism does not engage this point at all. For example, as mentioned above, the leading work in the judicial imperialism literature is Mark Lemley’s 2022 Harvard Law Review article, “The Imperial Supreme Court,” but this article mentions the Warren Court only once, in a single footnote. In that footnote, Lemley writes the following: “While one might compare the current Court’s activism to the Warren Court’s, the Warren Court was involved in the sort of institutional politics I describe in the text, strengthening individual rights against the government and strengthening federal power against the states. Even if that was ‘activist,’ that activism was directed toward a consistent purpose within the federal system.” Lemley’s only piece of counterevidence to the Warren Court being imperialistic is that “[t]he Warren Court deferred to congressional action, for instance, in upholding the Civil Rights Act and the Voting Rights Act.”

Lemley seems to be arguing here that the Warren Court’s expansion of power was not defined by its bare desire to secure power for the Supreme Court as an institution, but rather by its political agenda to advance the civil rights revolution. Thus, Lemley concludes, the Warren Court’s enlargement of judicial power, at the expense of state governments, school boards and law enforcement agencies, was not really an expression of judicial imperialism.

This is a rather strange distinction. Of course, the Warren Court could have been motivated by both the desire for power and the desire to advance a political cause. Likewise, it is not clear that the Roberts Court is merely driven by a desire to enlarge its power. A more plausible explanation is that the Roberts Court is trying to cure the defects of years of constitutional errors, many of them created by the Warren Court’s imperialism.

Originalism as a Safeguard Against Judicial Imperialism

The originalist movement was developed in the early 1970s, as part of an effort “to forestall or constrain” the Warren Court’s “legal liberalism,” as Georgia Southern University history professor, Jonathan O’Neill, writes.

Many scholars trace the formation of originalism as a formal movement to a 1971 Indiana Law Review article, by a then-Yale University law professor named Robert Bork. Bork argued that the Supreme Court’s power of judicial review “is legitimate only if [the Court] has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution.” Accordingly, Bork added, if the court “does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power.” Bork’s article, though focused on free speech doctrine rather than on originalism as such, is often treated as, in Ken Kersch’s words, “the first significant articulation of modern originalism (as an ‘ism’).”

Bork’s article paved the way for Raoul Berger’s “Government by Judiciary: The Transformation of the Fourteenth Amendment” (1977). Berger’s book was not only the first major work on originalism in the legal academy, but it also took on the most controversial area of constitutional law, in that its central purpose was to determine if the Warren Court’s landmark Fourteenth Amendment civil rights decisions were authorized under the “original intent” of the congressmen and senators who drafted the constitutional amendment. Berger’s answer, in nearly 500 pages of analysis, was a resounding “No.”

Berger’s book quickly became the central work in originalist scholarship and conservative legal discourse. In fact, the term “originalism” specifically grew out of subsequent left-wing criticism of Berger’s book. Given that the originalist movement was borne out of Berger’s desire to counter the Warren Court’s “judicial imperialism,” it is remarkably odd that in 2024, we now have liberal defenders of the Warren Court claiming that the Roberts Court’s originalism amounts to an unprecedented act of judicial imperialism.

If it is true that the Roberts Court represents, as so many liberal scholars contend, an imperialist Supreme Court, this is because it is operating under the system engendered by the Warren Court revolution. To the extent that we accept the legitimacy of that revolution, we are all judicial imperialists.

Are We All Judicial Imperialists Now?

While I firmly believe that the claims of the Roberts Court’s judicial imperialism are greatly exaggerated, there is some truth to these allegations. There are indeed ways in which the current court is using its authority of judicial review to assert more power over the federal government (as is the case in Loper Bright) and over the states (as exhibited in recent decisions dealing with affirmative action, religious liberty and firearm regulations). Notably, many of these decisions have not been squarely grounded in originalism. While liberal critics are surely disingenuous in their charges against the Roberts Court, in that they do not level such criticisms at the Warren Court or other instances of liberal judicial activism, they are not entirely wrong in claiming that the Roberts Court is taking on an activist agenda.

The truth is that the Roberts Court is more committed to expanding its power than it is to enforcing originalism. Consider how, for the early originalists, from political figures like former Attorney General Edwin Meese to legal scholars like Berger, and Bork, the states—as the only institutions in our system with the power to regulate important matters like the safety, health and morality of the citizenry—constituted the core of the American constitutional order. Under this view, we would need significant historical evidence to justify depriving states of their authority over such distinctly local matters. Indeed, the Meese, Berger and Bork style of originalism would require overruling significant elements of the Warren Court’s legacy. For starters, this would include decisions extending Congress’ commerce power over intrastate activities. Likewise, under a more robust version of originalism, there would be no such thing as the dormant commerce clause—the judicially created doctrine that states may not regulate commercial activities that Congress has the power to regulate. Also under this view, Congress’ spending power would give it only the power to fund activities, not to regulate them through that funding. And the supremacy clause would preempt only those state laws that actually conflict with federal laws, not those that merely obstruct the purpose of the federal laws, as the court has held. In addition, the incorporation doctrine under the Fourteenth Amendment would apply narrowly, so that the establishment clause would not apply to the states, which would mean that the Warren Court’s school prayer decisions as well as other landmark church-state rulings would have to be overturned.

This is by no means a complete list of things that would change under a court actually committed to originalism. I mention the items on this list because there is abundant historical evidence that the court got these questions wrong as an originalist matter and yet not a single one of these issues is on the table for the current Supreme Court. Nor are these issues likely to be considered by any court in the near future. The Roberts Court may employ originalism more than previous Supreme Courts, but it is clearly not an originalist Supreme Court in that the Constitution’s original meaning is not driving its decision-making.

So, going back to Kagan’s bold proclamation, we can now see, 14 years later, that she was wrong: We are not all originalists now. A striking illustration of this comes courtesy of Yale University law professor Samuel Moyn, who recently wrote a eulogy of sorts, proclaiming that liberal originalism is officially dead.

But Kagan was wrong not simply because legal liberals have given up on the project. The story of conservatives having embraced originalism has also been exaggerated. Indeed, the logical contrary of Kagan’s statement is closer to the truth: We are all not originalists.

In other words, because we are all imbued with the Warren Court’s judicial imperialism, placing the Supreme Court at the center of our constitutional order, there are no true originalists on the federal courts or in the legal academy. In this sense, we are all judicial imperialists more than we are originalists.

Until we can place our ideological divisions to the side and agree that—no matter who is currently on the Supreme Court, and what issue is currently on its agenda—our constitutional order will not work when a simple vote of five Beltway lawyers can control the lives of 330 million Americans occupying vastly different regions of a continent-sized nation. Put simply, before we can fight for originalism to control the court, we first must fight against the court’s judicial imperialism controlling us.