Breyer retirement sparks new debate over 'originalism' Supreme Court approach

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Supreme Court Justice Stephen Breyer announces retirement

Justice Stephen Breyer addresses his decision to retire from the U.S. Supreme Court.

Supreme Court Justice Stephen Breyer announced Wednesday that he would retire, reigniting a debate on judicial philosophies like constitutional originalism as President Biden considers candidates to nominate to the nation's highest court.

While Americans associate originalism with the Republican Party and former President Trump, the philosophy is compatible with liberal and Democratic values, experts say. Some legal experts and professors called on Biden to nominate an originalist to replace Breyer, while a critic called the issue a "red herring."

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"There are multiple definitions of originalism, and multiple theories of it," Ilya Somin, a law professor at George Mason University, told Fox News Digital. "Speaking just for myself, I would say it’s the idea that provisions of the Constitution should be interpreted in accordance with the original meaning of the text at the time it was ratified (e.g. – 1868 for the 14th Amendment)."

Supreme Court Associate Justice Stephen Breyer announces his retirement in the Roosevelt Room of the White House in Washington, Thursday, Jan. 27, 2022. President Biden looks on.  (Associated Press)

Somin said he would prefer that Biden nominate an originalist, but he noted that it is unlikely.

"Other things equal, I think it would be good if Biden nominated an originalist, though there certainly can be originalists whose positions on particular important legal issues are sufficiently bad that I might rather have a living constitutionalist nominee, instead (depending on the particular type of living constitutionalist)," he said. "Originalism is not a bullet-proof guarantee against grave error. Regardless, I think it’s very unlikely Biden will nominate an originalist."

"Originalism is not a bullet-proof guarantee against grave error. Regardless, I think it’s very unlikely Biden will nominate an originalist."

— Ilya Somin, George Mason University

Somin noted that "there certainly are progressive originalists. The most prominent are probably Yale Law School professors Jack Balkin and Akhil Amar. And even many conservative originalists, like the late Justice [Antonin] Scalia, recognize that originalist methodology sometimes leads to politically liberal results on a good many specific constitutional issues."

Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee on Capitol Hill in Washington May 20, 2010. Scalia died in 2016 at age 79. (Reuters)

Others also advocated for originalism.

Adam Carrington, associate professor of politics at Hillsdale College, told Fox News Digital that Biden should appoint an originalist "because, in the end, originalism is an attempt to uphold the rule of law. It seeks to get judges to follow the will of the people, expressed through the Constitution or their legislators. Otherwise, judges can abuse the text’s language, replacing their rule for that of We the People."

"Originalism is an attempt to uphold the rule of law. It seeks to get judges to follow the will of the people."

— Adam Carrington, Hillsdale College

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Carrington described originalism as "a set of approaches to interpreting laws" that begins with the premise that "the best understanding of a law is that which was held by its makers and the people who first lived under it." He explained that originalists use tools "like grammar studies and history, to avoid applying the personal views of the judge and instead apply the will of those who made the law." 

"A judge who is not an originalist seeking to interpret the Constitution's original public meaning is at great risk of applying his or her own policy preferences rather than the law," Carrie Severino, president of Judicial Crisis Network and former clerk to Supreme Court Justice Clarence Thomas, told Fox News Digital. 

Eric Segall, a professor of law at Georgia State University, dismissed the issue of originalism as a "red herring." 

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"I think that there has never been a true originalist on the Court, that all of the Justices -- liberal, moderate, and conservatives -- in big cases vote their values and life experiences more than law, and that Biden should appoint someone who honestly and transparently explains her decisions," Segall told Fox News Digital.

"I think the issue is a red herring," he added. "There is no longer a single definition of originalism. It is a family of academic theories with many different approaches, and they are all utterly irrelevant to the results reached by the Justices."

"I think that there has never been a true originalist on the Court. … all of the Justices -- liberal, moderate, and conservatives -- in big cases vote their values and life experiences more than law."

— Eric Segall, Georgia State University

Supporters of orginialism also defended the philosophy against the claim that originalism is racist or White supremacist. 

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"Anyone who says originalism is rooted in White supremacy has it backwards," Severino said. "The three Reconstruction Amendments to the Constitution were meant to eliminate White supremacy in the law. It was by departing from that meaning that the late 19th century/early 20th century Court became an enabler of Jim Crow."​

"Originalist arguments have too often been used to promote racism and White supremacy," Somin admitted. "But the same can be said for living constitutionalist arguments. There is nothing intrinsically racist about originalism (or living constitutionalism, either). The original meaning of several key parts of the Constitution (the Reconstruction Amendments) arises from a historic effort to counter racism and White supremacy, especially that perpetrated by state governments."