How Liberals Learned To Love Scalia-Style Constitutional Originalism

Progressives have found themselves locked out of the Supreme Court for the foreseeable future. So some are turning to a new strategy to keep the court from damaging their policy priorities: presenting arguments to its conservative justices in a language they understand.

For this court, that means making textualist arguments ― grounding a legal case in the original text of the Constitution and any relevant statutes ― to peel at least one vote from its five-vote conservative bloc. One progressive group happens to be uniquely prepared for this moment.

The Constitutional Accountability Center, founded in 2008 by litigator Doug Kendall, is the central hub for advancing progressive textualist arguments in the courts and to the public. Kendall, who died in 2015, argued that the debate over how judges should interpret the law was over: Textualism, which had largely been embraced by conservatives like the late Justice Antonin Scalia, had won. It was time for progressives to join the fight over the meaning and interpretation of the Constitution, Kendall said.

“Our founding belief was that if progressives spent less time fighting about the method of interpreting the Constitution with conservatives, we could spend more time discussing what the Constitution actually means,” said Brianne Gorod, chief counsel for CAC. “And that that’s a fight that progressives can win.”

The textual arguments the center has been making for a decade are now more important than ever. Justice Anthony Kennedy’s departure from the court in 2018 left behind a conservative court majority that takes after Scalia far more than Kennedy.

“With the different court, mostly populated by people who have fashioned themselves as originalists, you know, we need to speak to them in the language that they have at least themselves,” Gorod said.

The center’s lawyers are representing nearly 200 members of Congress suing President Donald Trump for violating the Constitution’s emoluments clause. They argued against the appointment of acting Attorney General Matthew Whitaker. And they have made textual arguments through amicus briefs in dozens of cases that have been decided, argued or are still working their way through the courts, including on vital issues like the structure of the Consumer Financial Protection Bureau and the federal housing agencies.

The Supreme Court may have kept Whitaker in his position when it ruled on a separate challenge to his appointment, but other textual arguments CAC has made have succeeded in reaching progressive results.

In the case of New Prime v. Oliveira, the court issued a unanimous 8-0 decision written by Justice Neil Gorsuch that sided with Dominic Oliveira, a trucker, against New Prime, his employer, which sought to use forced arbitration to get him to pay for his own gas and leasing his truck. This was a remarkable win for workers, as the conservative bloc on the court has sided with the corporations in practically every recent case involving forced arbitration.

How did this conservative court come to this rare conclusion in support of an independent contractor? It’s because CAC and Public Justice, the group representing Oliveira, made detailed textual arguments to the court ― and won.

The costs that led to the forced arbitration in the case arose because New Prime classified Oliveira as an independent contractor during his apprenticeship period. This let New Prime deduct costs from his paycheck. Oliveira challenged whether New Prime could classify him as an independent contractor at all; if not, the company could not force him into an unfair arbitration process.

Public Justice and CAC argued in briefs and to the court that the Federal Arbitration Act of 1925, as it was originally written and understood, would not allow New Prime to classify Oliveira as an independent contractor. To make this argument they dug deep into dictionaries from the Middle Ages up to the 1920s to show that lawmakers who wrote and passed the FAA in 1925 saw the word “employment” as a synonym for “work.” Therefore if Oliveira was working for New Prime in any capacity, he should technically be treated as an employee for the purposes of the arbitration law.

In his decision, Gorsuch cited the dictionaries Public Justice and CAC presented as evidence to side with Oliveira and deliver a progressive victory for workers.

“What New Prime illustrated was that progressives can achieve victory by really making the arguments in the way that are going to resonate with a Justice Gorsuch, a Justice [Clarence] Thomas, who wants to really focus on the text rather than simply making policy arguments,” Gorod said.

These progressive textualist arguments are what Slate’s Mark Joseph Stern labeled the “Gorsuch brief.” As the court’s most dedicated textualist, Gorsuch has become a favored target of progressive briefs grounded in text-based arguments. New Prime wasn’t the only case where progressives succeeded by tailoring their arguments to Gorsuch.

As Stern notes, Gorsuch appeared receptive to progressives’ arguments in the 2018 Nielsen v. Preap case that could decide when the government can detain undocumented immigrants who have committed a crime. The ACLU, representing Mony Preap and other respondents, argued that the text of the law in question said these immigrants can only be put in detention “when the alien is released” from criminal custody. The Trump administration said they could detain the immigrants at any time after release. 

“In some sense, Supreme Court litigation is about arguing to targets and about who one sees as the swing votes potentially,” said Praveen Fernandes, CAC’s vice president for outreach.

CAC hopes its textual arguments, in cases still moving through the courts, will be compelling enough if they reach the Supreme Court. They have already been successful in a lower court with their arguments in the emoluments case against Trump.

“That’s a good example of a legal question that wasn’t something that anyone was thinking about a couple of years ago,” Gorod said. “But we looked to the Constitution’s text and its history and what the framers were trying to accomplish when they included the foreign emoluments clause in the Constitution.”

The district court judge overseeing the case agreed with CAC’s arguments that the definition of emoluments includes business transactions like a rented hotel room or a government gifting the president with a trademark and that the Constitution’s authors intended for the clause to apply to the president. It was a major win for a landmark case that is almost certain to be heard by the Supreme Court.

CORRECTION: A previous version of this story mistakenly indicated the Nielsen v. Preap case has already been decided.