At Dorf on Law, Eric Segall: Please Stop Calling the Roberts Court Justices Originalists. From the introduction:
Professor Larry Solum, in addition to running the influential Legal Theory Blog, is one of the country’s leading academic originalists. He very recently had this to say about the Dobbs decision, which reversed Roe v. Wade:
Dobbs does not employ an originalist methodology or reasoning. This is really not subject to reasonable dispute: Dobbs’s reasoning is based on substantive due process and does not engage with the relevant clause, the Privileges or Immunities Clause from an originalist perspective. The outcome of Dobbs might be defended on originalist grounds, but that does not transform the reasons it provides and the methods it employs into originalism.
There are a number of important and fascinating aspects of this description. First, for almost 150 years the Supreme Court has used the Due Process Clause of the 14th Amendment to review unenumerated rights cases like abortion-not the Privileges or Immunities Clause. Professor Solum apparently believes that is an originalist mistake. Leaving aside the hubris of discarding a century and a half of decisions interpreting the Fourteenth Amendment because an academic in 2026 knows more about its original meaning than the justices alive at the time, Professor Solum seems to be saying that there is no originalist basis for substantive due process at all.
Because Professor Solum has chided me personally and others for making claims about the indeterminacy of the litigated Constitution without, according to him, doing the required research, I would be interested in Professor Solum’s efforts to demonstrate that as an original matter substantive due process is unwarranted (there is a wide body of literature debating this point, as there is arguing for the Constitution’s indeterminacy as an originalist matter).
But more importantly, no matter how one defines originalism, Professor Solum is correct that Dobbs is not an originalist decision. He and his writing partner Professor Randy Barnett made this argument in great detail in a recent law review article. Their key move is that decisions that may reach the correct originalist result based on non-originalist reasoning should not be considered by academics, lawyers, other judges, and the general public as originalist. I agree, and it should follow that decisions that do not use originalism at all to reach a result (and are not based directly on precedent supported by originalist reasoning) are also not originalist, even if the results may be correct as an originalist matter. And, if that is true, then the Roberts Court has decided virtually no originalist decisions, which is a serious problem of government transparency given that five of the current justices self-identify as originalists when they are in fact, like all judges, constitutional pluralists. This hypocrisy, as I’ve argued before, is simply a mask for GOP and conservative values.
I recently published a long article detailing precisely how the Roberts Court is no more originalist than any prior Supreme Court. When I presented early drafts of this paper publicly, or made similar points in podcasts, etc., the pushback I used to get from originalists was that there were not enough originalists on the Court to allow an originalist justice to write an originalist opinion. But that defense is no longer applicable.
Professors Solum and Barnett argued that Dobbs is not originalist because its tradition-and-history focus, which spans centuries, does not stress either 1791 or 1868 enough to justify the originalist label. But that description is true for virtually every major constitutional law decision the Roberts Court has decided. Although Professors Solum and Barnett argued that Bruen is an originalist decision (it emphatically is not), I will concede the point for purposes of this post. Now let’s take a quick look at other areas of constitutional law apart from the Second Amendment that the Roberts Court has drastically altered….
Posted at 6:02 AM