2 IV. V.
ORIGINALISM ON THE SUPREME COURT
[Vol. 1
B. Dissenting Opinions ............................................................... 7 CHALLENGING SAME-SEX MARRIAGE PRECEDENT ............................. 9 CONCLUSION ..................................................................................... 10 I. INTRODUCTION
In theory, Supreme Court justices are meant to be nonpartisan interpreters of the law. Arbitrary political party lines are not supposed to reflect in the rulings made by the highest court of the land. However, historical precedent provides evidence that the Court functions with an ideologically split not by party, but by view of constitutional interpretation. 2 The different interpretations’ names may vary; however, their basic premises remain similar. Typically associated with conservative-leaning justices, 3 originalism follows the interpretation of the Constitution as a set of laws with nonchanging meaning. 4 Non-originalism or living constitutionalism, as an approach often ideologically connected to liberal-leaning justices, 5 holds that the Constitution is a living document that undergoes societal changes and evolves with the passage of time. 6 In many cases, this variation of constitutional interpretation among justices appears to take form via arbitrary party lines, evident through, for example, how nearly every 5-4 decision during the 2014-2015 term was split by party. 7 Further, even the selection and nomination of justices by modern-day Presidents is largely rooted in partisanship: Justices are typically selected from a pool with similar political ideologies as the majority party at the time. 8 On October 26th, 2020, Amy Coney Barrett, nominated by Republican President Donald J. Trump, was confirmed as the 115th Associate Justice of
2 Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court, THE SUPREME COURT REVIEW 301 (2016). 3 Edward Whelan, The Judicial Divide Between Conservatives and Liberals, ETHICS AND PUBLIC POLICY CENTER (Nov. 20, 2018), https://eppc.org/publications/interview-with-edwhelan-judicial-divide-conservatives-liberals/. 4 Katie Vloet, Two Views of the Constitution: Originalism vs. Non-Originalism, MICHIGAN LAW (Sept. 22, 2015), https://www.law.umich.edu/newsandinfo/features/Pages/ConstitutionDay_092215.aspx. 5 Whelan, supra note 3. 6 Vloet, supra note 4. 7 Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, STANFORD POLITICS (Jan. 7, 2016), https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supremecourt/. 8 How Judges and Justices Are Chosen, American Government Online Textbook, https://www.ushistory.org/gov/9d.asp.
