NEW YORK CITY — Michael Waldman, president and CEO of the Brennan Center for Justice at NYU School of Law, sharply critiques the Supreme Court’s reliance on originalism in this week’s edition of The Briefing, arguing the method is flawed, rooted in speculative assumptions about the framers’ intentions, and now requires a substantive response through the Brennan Center’s new manual aimed at countering misleading historical arguments in legal contexts.
According to Waldman, “‘[o]riginalism has been wielded mostly as a tool to cloak conservative policy choices in historical and legal jargon. Yet we engaged originalist arguments on their merits, because we must.’”
To achieve the following, Waldman references the detailed handbook, Countering Originalism: A Guide for Litigators. It is designed to instruct attorneys on identifying, evaluating and countering poor historical arguments in legal proceedings.
On Tuesday, Dec. 16, 2025, the Brennan Center published an article written by Michael Waldman titled “A New Playbook for Countering Originalism in Court.” The article writes that “[i]f the Supreme Court takes the theory seriously, then lawyers have to as well.”
According to the article, John Marshall, one of the earliest chief justices, believed that the Constitution should be a document understood broadly by its principles. He wrote that “‘[w]e must never forget that it is a constitution we are expounding…intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’” In response, Waldman argued that the Supreme Court “…seems to have [forgotten].”
According to the article, the conservative supermajority has explicitly stated that it is using originalism as its primary method for interpreting the Constitution. This radical approach seeks to preserve the document in its historical context, interpreting its language solely based on the intended public meaning from 1787. Litigants aiming to reverse rights and weaken the federal government have followed the Court’s lead, inundating their arguments with questionable historical claims.
In the article, Waldman notes that there are several critiques concerning originalism. He states that regardless of opinions, “…this is the current situation for people fighting for rights and justice before the Court.”
According to the article, due to the following reasons, the Brennan Center has taken an innovative approach. A week ago, the center released a handbook that provides guidance on identifying and addressing originalist arguments. The manual is designed for lawyers and judges who might feel overwhelmed by complex linguistic twists and historical nuances, offering them strategies to navigate the intricacies of historical interpretation.
The following is a statement written by Waldman’s colleague, Tom Wolf. According to Wolf, he states:
“Our report distills the insights we’ve been sharing with our allies in the litigation trenches. It gives attorneys practical advice for spotting, analyzing, and defeating shoddy history in their cases. Our guide is based on the idea that lawyers facing originalist arguments don’t have to become historians or default into “‘doing originalism.’” Lawyers can still lawyer, using court decisions and critical thinking to take originalist claims off the table. Our guide shows them how. And—for those situations where lawyers have to get into the historical details—it walks through steps they can take to work better with historians, put forward more accurate history when that’s appropriate, avoid mistakes that can weaken their cases, and use history in non-originalist ways.”
Wolf further states that the lawyers actively safeguarding our democracy “…are busy. So, [the Brennan Center’s] guide gets right to the point.” He states that it offers a range of tips, supported by comprehensive references to case law, academic literature and court documents, allowing lawyers to quickly incorporate them into their briefs and oral arguments.
According to the article, there is no “‘history and tradition’” of the Supreme Court working this way. Contrary to popular belief, the Court’s adoption of originalism is a relatively recent development. It effectively gained traction in 2022 with two landmark cases: Dobbs v. Jackson Women’s Health Organization, which claimed to base the repeal of abortion rights on the Constitution’s original meaning, and New York State Rifle & Pistol Association v. Bruen, which asserted that contemporary public safety issues could not constitutionally justify gun regulations.
According to the article, before the following, the only significant originalist rulings were 2008’s case DC v. Heller, which recognized an individual’s right to own firearms under the Second Amendment. And Dred Scott… “which the originalists don’t talk about very much,” states Waldman.
According to the article, as of today, the Court’s application of this novel theory is inconsistent. The case of Trump v. United States, which afforded presidents immunity from criminal prosecution, lacked any basis in originalist thought. An examination of the founding era would reveal minimal backing for a presidential role akin to that of a monarch.
The article states the Court is currently deliberating significant issues surrounding presidential authority and constitutional rights. During the arguments regarding Trump’s tariffs, inquiries appeared to focus on historical federal practices. The Trump administration is seeking to abolish birthright citizenship for the offspring of specific immigrants, drawing on a reinterpretation of the 14th Amendment that echoes the sentiments of the Dred Scott decision.
Further, the article states that in the case concerning whether a president has the authority to dismiss a member of the Federal Trade Commission, the discussion has largely centered on the structure of the federal government.
According to the article, this focus may stem from the Court’s previous reliance on a flawed historical interpretation of the president’s removal power and its belief that it can safeguard the Federal Reserve through a questionable historical exception. Should the Court permit the dismissal to proceed, it would effectively overturn Humphrey’s Executor, a 1935 ruling that upheld the constitutionality of protections for leaders of independent agencies established by Congress.
In the article, Waldman argues on behalf of historian Jane Manners in a friend-of-the-court brief, restrictions on the firing of officials have existed since long before the founding of the nation. The framers, fully aware of these limitations, anticipated that Congress would define the parameters of executive offices.
According to the article, the country has changed and thrived since the Constitutional Convention. As the United States evolved from a handful of settlements on the East Coast into a vast nation of 350 million people, it has developed systems to address the needs of a modern government. Attempting to govern in 2025 by imposing the social norms of the 18th-century “property-owning white men” is not a practical approach.
The article concludes by stating that over the years it has become evident that originalism is often used as a means to disguise conservative policy decisions with historical and legal language. “Yet we engage originalist arguments on their merits, because we must. And we must be able to respond more effectively,” writes Waldman.
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