Chris Green’s recent post discussing whether a decision that fails to follow originalism should be called an anti-originalist decision raises a more general question. How should we describe various decisions of the Supreme Court that might depart from the originalism in different ways?
Now that the Supreme Court is originalist enough for questions to be raised about the cases where it does not follow originalism in all respects, we need a vocabulary to describe these decisions.
We can start by focusing on two basic features of Supreme Court decisions that implicate originalism: the methodology that the decision employs and the results that the decision reaches. In each case, the Court might either follow or not follow originalism. This yields four possibilities.
1. Pure Originalism: Originalist Methodology + Originalist Result
This is the best case for originalism. The Court employed an originalist methodology and reached an originalist result.
2. Mistaken Originalism: Originalist Methodology + Nonoriginalist Result
Here the Court employs an originalist methodology but gets the answer wrong. Since mistakes of this type are inevitable, this is still very congenial to originalism.
3. Nonoriginalism Yielding an Originalist Result: Nonoriginalist Methodology + Originalist Result
Here the Court employs a nonoriginalist methodology but produces the answer that accords with originalism. There are different ways of interpreting this situation. I tend to view the glass here as half empty. Thus, I call it nonoriginalism. But it does have something for originalists in it.
4. Pure Nonoriginalism: Nonoriginalist Methodology + Nonoriginalist Result
Here everything is nonoriginalist – hence the name pure nonoriginalism.
These categories are helpful but they are only a start. The analysis could easily be made more nuanced by introducing more categories.
The Constitutional Rule: Instead of simply distinguishing between methodology and result, one might also talk of an intermediate category of the constitutional rule. For example, one might use an originalist methodology to determine the test for determining whether something is a privilege or immunity of United States citizenship and then apply that test to a particular case. In this situation, for example, one might have an originalist methodology, a nonoriginalist rule (if the Court got the rule wrong despite applying the correct methodology), and then an originalist result (if the result conformed to what a correct originalist analysis would have yielded).
The Lawful Result: In originalist cases, sometimes the Court will follow nonoriginalist precedent based on the rules of stare decisis. Different originalists have different views of precedent. There might be a decision that reaches a nonoriginalist result but does so based on precedent rules. Those precedent rules might either be correct or not. Thus, one can analyze cases based in part on this criterion.
Antioriginalist Methodology: One might also employ Chris Green’s antioriginalist label for cases that do not merely fail to apply originalism but reject it. I am not sure whether there are any such cases but that is how one might describe them.
Application to Dobbs: How might this schema work in practice? Let’s take as an example Dobbs v. Jackson Women’s Health Organization. For the most part, the decision did not apply an originalist methodology but instead applied precedent. The rule for protecting rights under the 14th Amendment was close to an originalist rule (at least under fundamental rights views of the 14th Amendment). The particular result in the case accorded with the original meaning (in part because the rule it applied was close to the original meaning). Whether the application of substantive due process precedent rather than the Privileges or Immunities original meaning was the correct move depends on one’s theory of precedent.
This schema helps to explain why people have such differing views about the originalism of different cases. Dobbs had parts that were close to originalism and other parts that followed nonoriginalism, with some commentators viewing the precedent as binding and others not. Whether a case is consistent with originalism is a complicated matter and often does not have a simple yes or no answer.
Posted at 8:00 AM