(Bloomberg Opinion) -- Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That's scary because it could eventually block even state courts from stopping partisan cheating.
What's most important about the issue, however, isn't the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It's the new kind of reasoning that the conservatives are using to reach their preferred result.
It's a legal theory that departs from the method of constitutional interpretation favored by a generation of conservative legal thinkers, originalism. That's the idea championed by the late Justice Antonin Scalia that the intentions of the framers should determine the meaning of the Constitution.
Now some conservatives want to sideline originalism in favor of textualism, the literalist notion that the words of the Constitution have to be interpreted according to their dictionary meaning, even if the historical evidence clearly points in the opposite direction.
This theory is about to split the court's conservatives. Right when a dominant conservative majority is poised to change the face of constitutional law, its members are starting to find they can't agree on what the true conservative position should be.
The reason is a deep tension between two parts of Scalia's jurisprudence: originalism, which says the Constitution means what its writers took it to mean, and textualism, which says words in a law should be understood according to their modern linguistic, or literal, meaning.
Time, Place and Manner
To understand the radicalism of what's going on, start with a congressional redistricting case that the Supreme Court declined to hear on March 7, Moore v. Harper. The North Carolina legislature had enacted a partisan gerrymander. The state's supreme court invalidated it twice.
Ordinarily, that would be the end of the matter. The Constitution says in Article II, Section 4, that the time, place and manner of electing U.S. representatives and senators shall be “prescribed in each state by the legislature thereof.” That makes the state's method into a matter of state law. The U.S. Supreme Court has no jurisdiction over questions of state law. Consequently, the North Carolina Supreme Court's decision that its own state constitution bars extreme partisan gerrymandering should not be a matter on which the U.S. Supreme Court can rule.
Enter constitutional literalism. Lawyers representing some North Carolina state legislators argued that the federal Constitution must be understood literally when it says that the manner of choosing legislators shall be set by the state legislature. That would mean that a state supreme court couldn't overturn its own state legislature's votes on the matter.
The consequences of this literalist argument would be two. First, that the U.S. Supreme Court would suddenly be able to intervene in the case, because it would no longer be a case solely about state law. Instead, it would be a case about the U.S. Constitution, on which the high court gets the final say. Politically, that would be a huge win for conservatives, who control the U.S. Supreme Court and 30 state legislatures but not as many state supreme courts.
Second, if the literalist argument were somehow correct, then state legislatures could do whatever they wanted in designing districts without worrying that their own state courts could overturn them. The North Carolina partisan gerrymander would be reinstated. And since the federal Constitution has not been interpreted to bar partisan gerrymanders, the process could be repeated anywhere.
The good news is that the Supreme Court declined to hear the case, leaving the North Carolina supreme court decision in place. That was reasonable, because the literalist reading of the elections clause of the Constitution makes no legal or historical sense.
Most obviously, state legislatures are creatures of state constitutions. If a state legislature violates the state constitution, the state supreme court must hold it to account. That's constitutional law 101, the view embodied in the famous Marbury v. Madison case that established the logic of judicial review of unconstitutional legislative action 219 years ago.
Almost as obviously, there is no way the framers of the Constitution intended for state legislative actions with regard to elections to be exempt from state judicial review. Nor could the framers' generation have read the Constitution that way. The scholars who have researched the historical question are all but unanimous on this. There is no evidence whatsoever that the elections clause of the Constitution was meant literally. That's because the framers understood that legislatures only exist pursuant to state constitutions. When they said legislatures in the state should set election rules, they meant it was up to the state legislatures to do so pursuant to their own state constitutions.
Textualism Versus Originalism
Here is where things get really interesting. The three justices who dissented from the North Carolina ruling — Samuel Alito, Clarence Thomas and Neil Gorsuch — all call themselves constitutional originalists. Originalism is part of the basic conservative legal philosophy shaped and expressed by Scalia and uniting conservative legal thinkers under his banner.
Yet in arguing for reversing the North Carolina state supreme court decision, Alito didn't mention the original meaning of the Constitution even once. Instead, he wrote that “the language specifies a particular organ of a state government, and we must take that language seriously.”
Invoking “language” is a reference to a different part of Scalia's jurisprudential worldview, namely textualism. But textualism is a theory Scalia favored for interpreting statutes passed by Congress, not for the Constitution.
In a sense, textualism is a form of anti-originalism. It stands for the idea that, to understand a law, you shouldn't ask what the legislature meant to say or what the law's purpose is. You should just look at what the law says. Textualists usually insist they aren't literalists, following the words to absurd conclusions. But the embarrassing truth is that they have no convincing theory of how to avoid following the words literally, because they can't rely on intent or purpose to say what result is absurd and what result isn't.
Right about now, you might be asking, how could Scalia be both a textualist and an originalist? One theory advocates ignoring the history of a law's enactment in ascertaining its meaning. The other says that history is decisive in interpretation.
The short answer is that Scalia himself claimed to distinguish statutory interpretation (use textualism!) from constitutional interpretation (use originalism!). He didn't have a great answer for why this interpretive distinction should exist. The most charitable reconstruction of his view is that he always wanted to constrain judicial discretion. He believed, rather doubtfully, that historical originalism constrained judges by virtue of relying on historical facts. He believed that looking to legislative intent or purpose in reading statutes gave judges too much leeway.
Words and Meaning
Today's conservative justices struggle to maintain the distinction between textualism and originalism. The first intra-conservative showdown on this question took place in 2020 when the court decided Bostock v. Clayton County, ruling that a provision of the 1964 civil rights law barring workplace discrimination on the basis of sex should be extended to protect gay and transgender people. The antagonists were Alito and Gorsuch — both of whom were on the same side in the North Carolina elections case.
In Bostock, Gorsuch, writing for a majority that included Chief Justice John Roberts and four liberal justices, grounded his logic solely in textualism. He didn't care what the drafters of the 1964 law thought, or could have thought. Because discrimination against gay and transgender people is based on their sex, without which they wouldn't be singled out, he concluded that it was “because of sex” under the law.
Alito wrote an indignant dissent. He compared Gorsuch's opinion to a pirate ship, flying the false flag of Scalian textualism. In good originalist fashion, he pointed out correctly that the framers of the civil rights law never dreamed of protecting gay people, much less transgender folks.
Perhaps because he didn't want to admit using originalism in a statutory-interpretation case, he insisted that textualism could not yield Gorsuch's conclusion. But he was wrong. The Bostock logic was exactly what textualism yields: a literal following of words. Liberals could applaud the result, but the logic was doubtful at best.
A better way to reach the same conclusion would have been to say that the true purpose of the law was to prevent discrimination based on irrelevant sex-related characteristics. The liberals would gladly have signed that opinion. But Gorsuch could not have written it without undermining his credentials as a follower of Scalia, because Scalia deemed legislative purpose an illegitimate basis for statutory interpretation.
The split in Bostock roiled young conservatives. Now the same problem – the inherent tension between textualism and originalism – is poised to shape another internal conservative fight, this time in the realm of constitutional, not statutory, interpretation.
Flipping the Script
In the North Carolina case, originalism won't give the conservatives the result they want. So Alito instead relied on the same kind of literalist textualism he deplored in his Bostock dissent. Gorsuch voted to join his Bostock adversary now adopting his textualist principle, and in a constitutional case, where, according to Scalia, textualism shouldn't apply. Alito can justly be charged with self-contradiction here. He should be reading the originalist historical evidence — and he isn't.
The same charge of inconsistency may be leveled at Thomas, ordinarily the court's most consistent constitutional originalist.
As for the other conservatives, it would appear that they are less inclined to abandon originalism where the historical evidence is robust. Justice Brett Kavanaugh wrote a separate opinion stating that he is open to hearing the North Carolina case, evidence that he wants to consider the originalist historical evidence more closely. Had he voted to grant review of the state supreme court decision, there would have been four votes to hear the case, which is all it takes. That he chose not to indicates that he probably favors a full review of the evidence.
Justice Amy Coney Barrett's silence hints that she may turn out to be the truest Scalian on the court: textualist in statutes but originalist in constitutional law. You can be sure she looked at the historical evidence before deciding to vote against hearing the case. And it is overwhelmingly likely she saw that the evidence did not support the Alito position. A former law clerk to Scalia, she didn't want to commit the fallacy of being a textualist in a constitutional case.
Roberts surely also realizes the Alito position is absurd. He cares deeply about judicial restraint, another Scalian principle that is increasingly ignored by activist conservatives. To overturn the North Carolina state court's decision would be activism of a high order.
When the Supreme Court does take up the elections clause, the conservatives are likely to be divided into two camps, each reflecting a different aspect of Scalia's legacy. Conservatism may be ascendant. But it isn't always going to be triumphant. It will be in part a victim of its own success.
Scalia's jurisprudence was instrumental in unifying conservative legal thinkers. Now it's going to haunt them for a generation.
More From Bloomberg Opinion:
- Conservative Justices Are Walking Into Their Own Trap: Noah Feldman
- Once Again, the Most Important Supreme Court Term Ever: Stephen L. Carter
- The Scalia I Knew Will Be Greatly Missed: Cass Sunstein
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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