Consider that Justice Thomas, along with Justice Scalia, voted to strike down huge swaths of constitutional law without historical justification . Together they invalidated state and federal affirmative action laws, campaign finance legislation, federal laws directing the states to help implement national programs such as background checks for gun purchasers, and many other important pieces of legislation without relying on persuasive originalist evidence.

Justice Gorsuch has only been on the court for a term and a half, but he has already joined with Justice Thomas (and the other conservatives) several times to strike down state laws without relying on originalist sources.

In his first term, for instance, Justice Gorsuch sided with Justice Thomas to strike down a 19th century section of the Missouri State Constitution that prohibited public money from going directly to religious institutions. Their broadly worded concurring opinion did not even reference the original meaning of the First Amendment’s “free exercise” clause, probably because they couldn’t.

Bruce Ledewitz, a law professor at Duquesne University who specializes in law and religion, wrote that “there is no way to interpret that original public meaning and come to the conclusion that a government’s refusal to provide public funds directly to a church could violate the Free Exercise Clause.” Finding no support in original meaning, as Professor Ledewitz persuasively argues, their decision was simply based on contestable, modern value judgments about the appropriate relationship between church and state.

The most recent term brought much more of the same. The Supreme Court voted to invalidate a Colorado nondiscrimination law as it applied to a baker who refused to provide a cake to a same-sex wedding. The majority issued a narrow decision unrelated to free speech and based on what they saw as biased comments made by state officials who had earlier ruled against the baker. But Justices Thomas and Gorsuch wrote a much broader opinion objecting to the law on free speech grounds and strongly suggesting that bakers should never have to make cakes for same-sex weddings. Their concurrence did not even mention what they saw as the First Amendment’s original meaning.

The court also voted to strike down 23 state laws that required nonunion public sector employees to pay union fees if they were covered by collective bargaining agreements negotiated by the union; a Minnesota law that prohibited the wearing of political apparel in voting places; and a California law that required “pregnancy crisis centers” to post information regarding state abortion services.

In the union and political apparel cases, Justices Thomas and Gorsuch joined majority opinions written by Justices Samuel Alito and John Roberts that did not rely on original meaning. In the union case, for example, Justice Alito wrote that we “can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public sector unions could charge nonmembers agency fees.” One prominent originalist, Michael Ramsey, a law professor at the University of San Diego, and a former clerk to Justice Scalia, said about this case, “I do not see the originalist argument for the challengers in this case.”