Eric Segall (Georgia State University College of Law) has posted Every True Story Ends in Death: How the Roberts Court Killed Originalism (91 pages) on SSRN. Here is the abstract:
Although there are at least six justices on the Roberts Court who identify as strong or moderate originalists, none of them exercise judicial review in an originalist manner, and the Roberts Court as an institution is no more originalist than previous Supreme Courts. The crucial difference between past Supreme Courts and the present one is that the current justices publicly claim to be guided by originalism but decide cases by using the same living constitutionalist, pluralistic model of judicial review that the Court has used for centuries. That disconnect harms the important rule of law value that government officials transparently explain the reasons for their decisions.
The doctrinal chaos plaguing constitutional law and constitutional theory flows directly from this disconnect between the justices saying publicly they are employing originalism but then flouting the doctrine in case after case. The
Roberts Court’s disregard and distortion of originalism has effectively killed it as a serious theory of constitutional interpretation.
The way forward is to recognize, as the original Originalists did in the 1970’s, that for originalism to be coherent as a method of constitutional interpretation it must come with strong deference to more accountable political actors than life-tenured judges. Only if judges restore the deference element to originalism can the theory be rebirthed into a useful and helpful method of resolving constitutional law cases.
As is often the case with Professor Segall's important critiques of originalism, I somewhat agree and somewhat don't. I would not say that the Roberts Court is never originalist — I think it tries to be originalist, and often is in lower-profile cases. But I agree that the Justices turn out to be, in Justice Scalia's phrase, faint-hearted originalists (sometimes very faint-hearted originalists) in leading cases. (Trump v. United States is a key example, as Mike Rappaport argues here).
Whether this is good or bad for originalism as a theory of constitutional adjudication is hard to say. There is certainly something to what Professor Segall writes — if a Court with a majority of originalist-oriented Justices can't get it right, perhaps originalism is too unrealistic to be a practical solution (in which case I agree the best fallback position may be strong judicial restraint), But, on the other hand, the Court's expressed interest in originalism has moved originalism from a fringe theory to the legal mainstream (such that people like Professor Segall are writing 91-page critiques of it) in a way that legal theorists alone never could. The question remains whether the Court will become more or less originalist in the face of criticisms of its sort-of originalism.
Posted at 6:30 AM