How to Interpret the Constitution Using a "New Pragmatism"

The U.S. Supreme Court’s reputation is like the 1980’s sitcom “Night Court.” There is chaos. But it’s not funny. This essay focuses on four recent, but confused, originalist-related decisions to prove its case that the conservative majority’s preferred interpretive method is at the root of this dysfunction. Then the essay argues that a solution to the Court’s interpretive problems is the use of a two stage “new pragmatism.” Pragmatism means the Court is reasonable, pluralist, and seeks the best result, not ideological absolutes. Think William James and his treatise, Pragmatism: A New Name for Some Old Ways of Thinking. Interestingly, most of my constitutional law colleagues admit privately that they want to see judges being more pragmatic.

Now, I acknowledge that former U.S. Supreme Court Justice Breyer has just written a book advocating pragmatism. But the approach here differs. Nonetheless, it is encouraging to see burgeoning scholarship taking this view, such as those put forward by Daniel Farber, Jamal Greene, Suzanna Sherry, and Robert Tsai.

One major problem with the four cases I highlight here—the four horsemen of the originalism apocalypse if you will—is arbitrariness. In 2022, the Court, in Dobbs v. Jackson Women’s Health Organization, misused history and overturned Roe v. Wade, rejecting a 50-year-old fundamental right to abortion. The majority found “that the right to abortion is not deeply rooted in the Nation’s history and tradition,” but constitutional scholars and litigator David H. Gans counters that the “rights to control one’s body, establish a family, and have children—all deeply rooted in the Fourteenth Amendment’s text and history—necessarily safeguard the right to abortion as a fundamental right.”

In 2023, the Court barely mentioned originalism while authoring its seismic decision in Students for Fair Admissions v. Harvard, outlawing affirmative action in university admissions. The Court's omission was essential because the Freedman's Bureau of the 14th Amendment period was designed to affirmatively help the newly freed slaves.

Originalism, malleability, and inconsistency were again on display in 2024, in the Court’s decision in United States v. Rahimi. In that case, the Court upheld a law that banned individuals subject to domestic restraining orders from owning firearms. This was a liberal result but was reached on originalist grounds. Nonetheless it further showed that the Court was inconsistent on originalism. Justice Clarence Thomas dissented, stating, “Not a single historical regulation justifies the statute at issue,” thereby disagreeing with Chief Justice Roberts and Justice Amy Coney Barrett.

Finally in Trump v. United States, the Court rendered a surprisingly policy-oriented decision in broadening the criminal immunity of the President. Chief Justice Roberts decided that the President was immune for criminal acts at the outer perimeter of his official duties and the core of his official duties. He reasoned that easily criminally prosecuting the President was a huge separation of powers intrusion. It might deter the President from acting in the best interest of the nation. Yet this would seem to place the President above the law.

To sum up, a supposedly institutionalist, Chief Justice John Roberts has actually created an activist, politicized Court that eagerly reverses precedents and bypasses stare decisis. A comment in the Harvard Law Review asserted that, “today’s Supreme Court serves as a useful specimen for studying the manipulability of stare decisis.”  The problem is that public opinion polls show that the Court’s overall rating has declined dramatically, and perceptions that the Court is political have risen. The Court is not elected so these changes are very dangerous for its legitimacy. Even before these decisions, commentators, legislators, the president, and even judges discussed the need for Court reform, especially getting rid of life tenure, the need for ethics rules, and perhaps even expanding the number of Justices, in a 2021 report by the Presidential Commission on the Supreme Court of the United States. Calls for reform, particularly ethics reform, have only increased in the wake of these decisions along with reporting that Justice Thomas and others have for years accepted lavish gifts and trips from wealthy patrons.

The Court’s decisions have had dreadful consequences. Conservative former Congresswoman Liz Cheney agrees. For example, women have died under new restrictive state abortion laws. Many universities have shut out more minorities. And that means the judges, the lawyers, and police in our criminal justice system will remain all too white and the institutions in which they work will remain all too dysfunctional. There is an operational need for diversity in law enforcement, as Vanita Gupta, former U.S. Associate Attorney General, recognizes. While previously serving as Head of the Civil Rights Division, she noted that “following our investigation of the Ferguson Police Department – where African Americans make up roughly 67 percent of the city’s population but, earlier this year, accounted for less than 8 percent of its police force – our report addressed the connection between the department’s lack of racial diversity and undermined community trust.”  Moreover, the Court disagrees about its own originalism. And the nation has a corrupt former President who, thanks to this Supreme Court, now has more power to commit crimes after winning a second term in office. What a combination.

To forestall further reputational and precedential damage and restore some faith in the judiciary, the Court should instead adopt a two-part practical method for deciding constitutional cases. In the first stage, the Justices should examine all the major modalities of constitutional interpretation, such as text, precedent, originalism, structural principles, and morality (think Philip Bobbitt). The Justices in a particular case should rank the strength of both sides’ arguments in each of these areas. One model, though not the only available, would be to use a grid with one to ten scores for each modality as a guidepost. Political scientists have certainly used numerical data already to assess certain aspects of the Court’s decisions.

After stage one, the Court would reach a preliminary conclusion. But in stage two, the Court would engage in an open-minded, inductive, transparent, contextual, and empirical determination of which result makes the most sense. The Justices would also engage in balancing the interests of the two sides as part of this analysis. Admittedly, the pragmatic result would usually prevail, but not always if some other modality scored very high. The Court could also use a numerical grid here, whether openly or not.

To put it bluntly, the Supreme Court is deciding “cases or controversies” and law is a practical science. The Court should therefore seek the best concrete result and use the finest possible method for getting there. Pragmatism is also a uniquely American approach as seen in the work of the previously mentioned William James and John Dewey.

Of course, the Justices will disagree profoundly along the way, including about which result is most pragmatic. But the Court would avoid the medieval, formalistic, and syllogistic debates over originalism that can’t justify Brown v. Board of Education, and that can’t justify using the Fourteenth Amendment to protect women from discrimination. Instead, the Justices will take into account all of the major modalities, and focus on the one leading to superior results, pragmatism. To the extent this seems subjective, it’s called judging.

Judicial independence, Supreme Court, Supreme Court Reform