After Justice Antonin Scalia died, many speculated that originalism would die as well, without one of its most tireless adherents on the bench. Not if Justice Ruth Bader Ginsburg has anything to say about it. While Justice Ginsburg is rarely classified as an originalist, during her tenure on the Court, she has written a series of brilliant text and history opinions, powerfully making the case that Constitution’s text and history point in a progressive direction. Her masterful originalist opinion in Evenwel v. Abbott, decided earlier this week, is just the latest example of progressive originalism in action.
Evenwel, a case engineered by conservative activist Ed Blum, concerned the question whether states are required under the Fourteenth Amendment to draw legislative districts composed of substantially equal numbers of eligible voters. In rejecting this radical claim, Ginsburg proceeded in originalist fashion: “We begin with constitutional history.”