Now that the election is over, people might wonder what role the Supreme Court will play during Donald Trump’s second term. If the new president engages in behavior threatening to the Constitution and the rule of law, will the justices try to stop him, or will they move even further to the right?

No one can reliably predict what the justices will do but one myth that legal scholars and the media must debunk is that the Court’s opinions are based on “originalism” rather than the justices’ politics and values. These labels matter because the justices should be held responsible for their ideological commitments which mostly track those of the modern republican party but even when they do not (as with many free speech cases) originalism does not drive results. This lack of transparency at our highest Court threatens the rule of law.

Lawyers, judges, and legal scholars who identify as originalists today do so to signal their politics and to possess a crucial and necessary key to success when navigating America’s law schools, courtrooms, the Federalist Society, and high-level DOJ appointments. Their jurisprudential conclusions, however, have less to do with originalism and more to do with their current politics and values. Originalism today is much more about identity than law.

The important non-originalist cases and constitutional doctrines discussed below are representative of most current constitutional law.

The first amendment’s original meaning did not extend beyond protections against prior restraints and licensing schemes for speech not yet uttered by the speaker. The Founding Fathers were not concerned with after-the-fact punishments for speech. The Alien & Sedition Act passed not long after the Constitution was ratified criminalized core political speech (again only after the speech was uttered). As late as the 19th century, there were blasphemy convictions in the United States.

Yet all the originalist justices have gone much further extending full constitutional protections to speech by corporations and unions, to people using bigoted and threatening expression to cause pain to others, and to producers of despicable animal crush videos (don’t ask) among many other expressive activities and conduct. This aggressive judicial protection for free speech might be good or bad, (free speech is necessary for a robust democracy) but it is simply not originalist.

All the originalists on the Supreme Court decided in the 2022-23 term that the use of racial criteria by colleges and universities violates the equal protection clause of the 14th Amendment, which they allege stands for a deep and permanent principle of color-blindness. But that phrase is not in the Constitution’s text, color-blindness is unequivocally not part of our history and traditions, and it is a controversial policy position that America has never lived by.

From slavery to Black Codes, to segregation, to modern redlining, and the Court’s constitutional jurisprudence, our country has never been “color-blind.” Maybe the best way to address racism going forward is through this new color-blindness but that is a policy choice based on living constitutionalism not originalism

The original meaning of the Second Amendment by almost all accounts prior to the 1970’s was exclusively concerned with state militias. That accurate understanding of the provision’s original meaning was displaced by a political movement funded by the NRA not constitutional interpretative methods.

The Court’s post-2008 gun decisions contain history rejected by virtually all historians and yet the justices march on to transform what was a right of the states to have organized and armed militias into an individual right to be armed that arguably has caused so many tragedies, mass shootings, and suicides and has led to the presence of over 400,000,000 guns in the United States.

In 2013, the Roberts Court infamously struck down a key part of the Voting Rights Act, claiming that Congress needs to have a strong reason to treat different states differently under federal law. Section 2 of the 15th amendment, however, gives Congress the power to enforce that amendment through “appropriate legislation.” There is no equal-protection-of-the-states clause in the United States Constitution.

The originalists on the Roberts Court at the time joined that decision, which was directly contrary to text and history, and the Roberts Court is not going to reconsider that decision. The equal state sovereignty principle is just judicial fantasy, strong living constitutionalism, and a policy choice.

It is certainly not originalism in any form.

The Roberts Court has also dramatically changed separation of powers law through a series of non-originalist, non-textual decisions. The Constitution does not say a word about who has authority to fire federal officers, but the conservative justices haven’t let that absence stop them from limiting Congress’ power to limit the President’s authority to fire independent agency officials.

Similarly, the justices invented the major question doctrine to limit Congress’ ability to solve national problems that require agency expertise (like the EPA and climate change). That judicially-created rule has no historical or originalist basis but is also a modern choice based on the justices’ libertarian hostility to the administrative state.

In these cases, the justices made up rules to make it more difficult for independent agencies to be…well, independent. We can have a healthy policy debate about agency power and expertise but nothing Congress has done in these cases violates the Constitution’s original meaning or our history and traditions.

The Court’s constitutional jurisprudence is almost entirely non-originalist and that includes the Roberts Court’s decisions. The justices in the majority are republicans, conservatives, and libertarians and they vote that way (just as the dissenting justices vote democrat and liberal). The use of the label originalist by legal scholars, pundits, and judges is now just a matter of identity and an effective tool to hide their conservative ideological values from the American people. We should expose this disconnect whenever possible in the name of government transparency and the rule of law.