Originalism is becoming the coin of the realm at the conservative Supreme Court. Even newly appointed liberal Justice Ketanji Brown Jackson has drawn on originalist evidence in her comments during oral arguments, and Justice Elena Kagan has quipped — only somewhat facetiously — “We are all originalists.”
If the court applies originalist analysis to the higher-education affirmative action cases currently before it, race-conscious admissions across the country should be upheld.
The originalist theory of constitutional interpretation holds that the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868. Historical laws and practices before and following ratification is important evidence for originalists seeking such understanding.