At Dorf on Law, Eric Segall: An Originalism Scorecard Since Justice Barrett Arrived on the Court: Living Constitutionalism is Way Ahead. From the introduction:
Justice Amy Coney Barrett was confirmed to be a Supreme Court justice in late October, 2020 (just before Donald Trump lost the election). Since her arrival, four justices now self-identify as full-blown originalists (Thomas, Gorsuch, Kavanaugh, and Barrett) while Justice Alito is an on and off again originalist, and even Justice Jackson at times has shown great interest in originalist sources.
Yet the most important cases of the last three terms have been almost totally devoid of originalist analysis. The reason for that omission is that none of the alleged originalists on the Court uses that method of constitutional interpretation unless it supports their views. In other words, they are conservatives and Republicans first, originalists only when convenient, which is to say that none of them are originalists at all. I have little doubt that at some future date the failure of these four justices to actually use originalism and even decide some cases against the most persuasive historical sources, will be compelling evidence for originalism's demise. Given the age of those four faux originalists, however, and life tenure, I may not live long enough to see that moment, but I am quite confident it will happen.
These days originalism comes in a wide variety of flavors. But for purposes of this essay, we can assume that all originalists agree that, to be an originalist, one must search for the Constitution's original meaning, or the intentions of those who wrote and ratified the Constitution, or both, using historical sources shedding light on the time period surrounding ratification. A judicial opinion with virtually no historical analysis or that relies on history far removed from ratification simply cannot be originalist, unless it also relies on prior originalist opinions, which none of the cases discussed in this blog post try to do.
This post is concerned with constitutional law decisions, not statutory interpretation cases. I can't canvass all the Court's constitutional opinions in one blog post, but I will discuss most of the major cases from the last three terms, which provide more than a representative sample showing how little originalism actually drives the Roberts Court.
The post then reviews the major cases from each of the last three terms, with this conclusion:
Since Justice Barrett joined the Court, the conservative justices have dramatically reshaped the law of abortion, affirmative action, gun control, the relationship between church and state, free speech, and the separation of powers. They accomplished many of the Republican Party's objectives in a very short time. And they did almost all of it without serious originalist analysis. These three terms contain just as much, if not more, living constitutionalism than probably any other three-year period in the Court's history.
I don't agree with all of the post's case descriptions, but overall an important point is made.
But I would reframe the question somewhat. Given constraints of institutionalism, precedent, and the practical need to produce a majority opinion, I think the question is not so much whether the Court's opinions are strictly originalist in every sense, but whether they are moving the Court in a generally originalist direction.
Posted at 6:03 AM