At SCOTUSblog, Richard Re: The Supreme Court’s realignment roundup: October Term 2025. From the introduction:
A legal realignment has been underway for some years now, in that legal views once associated with the right are now being espoused by the left, and vice versa. This post explores that point as to the Supreme Court’s October Term 2025, adapting the categories I used in my Harvard Law Review foreword for the preceding year.
And on originalism:
Originalism was for many years the asserted lodestar of conservatives like Justice Antonin Scalia and the bane of liberals like Justice Stephen Breyer. That alignment made sense, as originalism offers constraining principles befitting frequent dissenters. Lately, however, that once-familiar alignment has blurred to the point of disappearing.
This term’s removal cases offer a useful illustration. In Trump v. Slaughter, which concerned the president’s at-will removal of an FTC commissioner, both the conservative majority and the liberal dissent tussled over original historical materials in some detail. In Trump v. Cook, by contrast, the court substantially insulated the Federal Reserve from presidential control, and both Chief Justice John Roberts’ opinion for the court and Justice Brett Kavanaugh’s pivotal concurrence advanced arguments that are much more readily described as pragmatic than originalist. So both liberal originalism and conservative pragmatism appear to be on the rise. (Arriving at a similar conclusion, originalist theorist professor Larry Solum has suggested that only a single justice in these two cases employed a “primarily originalist” method: Justice Clarence Thomas.)
Another illustration arose in Trump v. Barbara, the birthright citizenship case, as both the cross-ideological majority opinion and the conservative dissenters extensively relied on original historical materials. Perhaps the least originalist opinion was Kavanaugh’s separate writing, which argued in favor of “new exceptions” to the historical birthright citizenship rule.
One tool for sloughing off strict originalism has been a metaphor originally deployed by non-originalist jurists. As I discussed last month, liberals in the 1970s denied that the Constitution was “trapped in amber.” These days, however, the idea that the Constitution is not trapped in amber has taken hold among the court’s conservatives, including in the Cook majority opinion and Kavanaugh’s opinion in Barbara. So a realignment of metaphors is underway, too.
My view is that there is less here that Professor Re supposes. Left-leaning Justices have always been willing to accept originalism as one mode of constitutional interpretation (a cynic would say, when it leads to left-leaning results). They only deny that it is the only mode. So there’s nothing surprising about them joining the originalist majority in Barbara, or dissenting on originalist grounds in Slaughter. And Chief Justice Roberts and Justice Kavanaugh also are not committed to the proposition that it is the only mode. (That’s why this blog often describes them as “originalist-oriented” rather than actually originalist.) Or, put another way, left-leaning Justices use originalism when it helps them, and right-leaning Justices water down originalism when that helps them. This is not new.
The relevant question, to my mind, is whether originalism is being used more often (by either side). The answer is, I think, yes. Barbara and Slaughter are evidence of this, as well as a host of other cases.
Posted at 6:05 AM