Supreme Court Polarization as a Product of the Originalism Movement

Written by Ishi Sharma on August 1, 2023.

The Supreme Court of the United States has never before been so polarized. As of July 9th, 2023, six of the nine justices presiding over the Court are right-leaning, and the remaining three are aligned with the left. Due to recent appointments, the typically historical 4-5 balance has been tipped askew. Consequently, the American people are now beginning to see many more 6-3 decisions strictly along partisan lines (Justices of each party voted together), especially in recent weeks. After the court’s overturning of Roe v. Wade, it went on to deem affirmative action (positive discrimination in higher education) unlawful, struck down Biden’s student debt forgiveness initiative, and granted web designers the right to deny their services based on the sexual orientation of their customers.

These three most recent decisions all have one thing in common: all concurring opinions were made by the six conservative justices. This recurring pattern has confirmed that the Supreme Court’s conservative bloc is ready and willing to use its majority power to make unprecedented rulings, regardless of what the American majority believes or expects. 

In a 2022 poll by the Pew Research Center, it was revealed that 61% of the American people believe that abortion should be legal in all or most cases. Similarly, NBC shared that 53% of Americans believe affirmative action is “still needed” or at least a “good idea as long as [there are] no quotas”. In December of 2021, Morning Consult found that 62% of voters support student loan forgiveness. These are just three examples of Supreme Court rulings that are contrary to American public opinion, and were confirmed only by the Court’s conservative bloc.

Political polarization has been an issue that has plagued America for centuries, causing deep division and even resentment between the parties. But the United States Supreme Court was not always as affected by this politicization as it is now.

One of the greater influences on the Court over the years has been the Originalism Movement. In the early 1970s, Robert Bork’s “Neutral Principles and Some First Amendment Problems” laid down the basic principles of contemporary originalism. Many more works of literature over the years expanded the definition to loosely this: originalism is a family of judicial theories that promote the interpretation of the Constitution in its “original meaning”. Some originalists aim to further this judicial philosophy in the American court system, a movement that was especially prevalent in the late 1900s.

This movement has most definitely had an effect on the appointment of Supreme Court Justices over recent years, caused by an upsurge in politicians who identify as originalists. These politicians also tend to be conservatives, or right-leaning at the least.  The nomination and appointment of a Justice involves voting in the Senate, further confirming that the Originalism Movement has played a part in altering the dynamic of the Court. In 2015, William Baude of the Columbia Law Review wrote, “In Supreme Court cases where originalism conflicts with other methods of interpretation, the Court picks originalism”. 

Throughout the years, the originalists have been there to help fill the vacancies in the Supreme Court. As a judicial philosophy on its own, originalism would not pose a problem. But originalism is also a conservative movement. It has manifested into the driving force behind the politicization of the Supreme Court, a court that’s primary purpose was to be the most impartial in America. The product of this influential movement can be clearly seen in the unprecedented rulings of the past couple of years. The partisan divide has already raised tensions and animosity among America’s people and politicians. It has slowed our country’s progress and even caused violence. But in the United States Supreme Court, originalism has fueled the recent polarization and has had a different, albeit still dangerous effect. It has left us stuck in the past.