I appear to have caused a bit of a stir in conservative circles recently when I asserted that Justice Hearn’s lead opinion finding a right to an abortion in the South Carolina state constitution was originalist. The general retort was that Justice Hearn engaged in results-oriented judicial activism, not originalism. But these two things are not necessarily contradictory–originalism as a method of interpretation does not guarantee that a judge is not using it merely as a means to a desired end. Whether Justice Hearn was doing exactly that is for her to say–I can only say that she did indeed use an originalist method to arrive at her conclusion.
Continue reading “The Originalism of Justice Hearn”Month: January 2023
Reaping the Whirlwind of Originalism
The whirlwind was coming, and the whirlwind has now come. That it originated from South Carolina is perhaps the only surprise.
On January 5 in a 3-2 decision in Planned Parenthood South Atlantic v. South Carolina, the South Carolina Supreme Court struck down a statute passed by the South Carolina state legislature banning abortions after the detection of a fetal heartbeat on the ground that the South Carolina constitution protected a woman’s right to abortion. The decision is based entirely on state constitutional grounds and not appealable to the U.S. Supreme Court. The five justices that arrived at the decision were all appointed by the strongly Republican state legislature, and prior to elevation to the bench all but one were registered Republicans.
And yet, such were the justices that found a right to an abortion in the South Carolina constitution. So yes, that it was South Carolina that has first taken this step may be surprising. But that originalist jurisprudence led to this result is the least surprising thing about the decision.
Continue reading “Reaping the Whirlwind of Originalism”