Caroline Mala Corbin (University of Miami School of Law) has posted Opportunistic Originalism and the Establishment Clause (Wake Forest Law Review, Vol. 53, 2019) (44 pages) on SSRN. Here is the abstract:
This Article argues that the Supreme Court’s use of originalism is opportunistic because sometimes the Court relies on it and sometimes it does not. This inconsistency is evident in its two most recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014), and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government’s policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a cash grant to a Christian church. The Court’s inconsistent application—even when dealing with a single clause—raises the possibility that the Court’s use of originalism is based less on principle than on desired outcomes.
Part I offers a very brief primer on the Establishment Clause and on the theory of originalism. Part II performs a close reading of Town of Greece. It first examines the originalist reasoning that led the Court to uphold a predominantly Christian prayer practice. It then considers how the case might have been decided had the Court relied on conventional doctrinal tests. Part III turns to Trinity Lutheran Church. It first reviews the Court’s cursory treatment of the Establishment Clause question presented, and then considers what various originalist approaches might have made of the challenged funding.
Mike Rappaport adds: I haven't read the article, but my impression is that the charge may be accurate. And I agree that originalists should have principled reasons for when they don't follow originalism, such as principled rules governing precedent. But that said, notice how this charge holds originalism to a tougher standard than nonoriginalism. Under the plural methodologies approach of people like Phillip Bobbit, which is probably the leading nonoriginalist approach, a judge is allowed to use any of the accepted methodologies (of which originalism is one). So using originalism some of the time and not other times is entirely acceptable within the plural methodologies approach, but is considered opportunistic when originalists do it. Perhaps someone should write an article entitled "Plural Methodologies: Opportunistic at Its Core." For more on this, see my Is Libertarianism the Law?
Posted at 6:38 AM