In his 2018 confirmation hearings before the Senate Judiciary Committee, Supreme Court nominee Brett Kavanaugh was asked by Sen. Mike Lee (R–Utah) whether or not he considered himself to be an originalist. "Originalism refers to basically textualism applied in the constitutional sphere, with an eye toward identifying the original public meaning of the constitutional text at issue," Lee observed. So "for our purposes today, you're an originalist?" "That's correct," Kavanaugh promptly replied.
Unfortunately for fans of originalism, Kavanaugh flunked his first big test as an originalist on the Supreme Court.
That test came in the case of Timbs v. Indiana. Tyson Timbs was arrested in 2013 on drug charges and sentenced to one year of home detention and five years on probation. A few months after his arrest, the state of Indiana also moved to seize Timbs' brand new Land Rover LR2, a vehicle worth around $40,000. But a state trial court rejected that civil asset forfeiture on the grounds that it would be "grossly disproportionate to the gravity of [Timbs'] offense" and therefore in violation of the Eighth Amendment to the U.S. Constitution, which forbids the imposition of "excessive fines."
The Indiana Supreme Court later reversed that judgment, concluding that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment."
The 14th Amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." The issue in Timbs, then, boiled down to this: Given that the Free Speech Clause of the First Amendment applies against the states as well as the federal government, the Excessive Fines Clause of the Eighth Amendment deserves the same treatment.
The Supreme Court agreed with that assessment and ruled unanimously in favor of Timbs. But the majority opinion, written by Justice Ruth Bader Ginsburg and joined by Kavanaugh and several others, held that the Excessive Fines Clause of the Eighth Amendment is "incorporated by the Due Process Clause of the Fourteenth Amendment."
That is a problem for many originalists, who argue that the framers and ratifiers of that amendment understood the Privileges or Immunities Clause to be the principal protector of fundamental rights against the states.
Writing separately, as he has done before, Justice Clarence Thomas made the case for citing privileges and immunities in such matters—and he now has a bit of company on the bench. "I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment's Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause," Justice Neil Gorsuch wrote in his own solo Timbs concurrence. But because "nothing in this case turns on that question," he said he was willing to go along with the majority this time around.
Thomas and Gorsuch are both self-avowed originalists, so it is fitting that they would explain and acknowledge, respectively, their heterodox views in a major constitutional case. Originalist judges are fighting an uphill battle, and one of the best ways to gain ground is by writing a persuasive opinion, typically penned in concurrence or dissent. How else are you going to change minds and set the foundation for winning future cases?
Which brings us back to the Court's newest addition, who did not bother to weigh in at all. If Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana.
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