Any project to revive a constitutional provision must confront originalism’s hold on today’s Court. Originalist arguments play a central role in nearly every constitutional case. And today, Justice Thomas is the Court’s most prominent originalist and a leading voice in election law cases.
Thomas is also the Court’s most prolific norm entrepreneur, authoring numerous separate opinions questioning longstanding doctrines on originalist grounds. To take a few examples: Thomas has rejected the legitimacy of the administrative state, challenged the actual-malice standard in defamation cases, and called Gideon into doubt. In the field of election law, Thomas recently questioned the one-person, one-vote principle because the “Constitution does not prescribe any one basis for apportionment within States.”
But Thomas has been inconsistent in how he approaches election law cases. Thomas is an ardent defender of Shaw’s cause of action against racial gerrymandering. As he once commented, there can be no “exempting intentional race-based redistricting from our well-established Fourteenth Amendment standard” of applying strict scrutiny to race-based governmental decision-making.
Read more at Election Law Blog