At Volokh Conspiracy, Josh Blackman: The Three Trump Appointees In Rahimi - Justices Gorsuch, Kavanaugh, and Barrett are fracturing over originalism. From the introduction:
I have spent some time thinking about how the three Trump appointees differ. In Rahimi, Justices Gorsuch, Kavanaugh, and Barrett each wrote concurring opinions. And they are not on the same page. I'm not even sure they're reading from the same book. Rahimi provides another opportunity to consider how the troika approaches originalism.
From his assessment of Justice Gorsuch's opinion:
Justice Gorsuch tries to mediate some synergy between the three concurrences:
If changes are to be made to the Constitution's directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post, at 6–16 (KAVANAUGH, J., concurring) (offering examples). And when doing so, litigants and courts "must exercise care." See post, at 3, n. (BARRETT, J., concurring)
But I think that Justices Gorsuch, Kavanaugh, and Barrett are quite far apart.
Gorsuch concludes:
Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen.
Far from it. The Court rewrites Bruen, which apparently had a two-year expiration date.
From the introduction to his assessment of Justice Kavanaugh's opinion:
Justice Kavanaugh wrote a 24-page concurrence that was about 24 pages too long. I give Kavanaugh credit for trying to lay out an intellectual foundation to support his approach to originalism, but the only person who will be persuaded is Justice Kavanaugh himself.
Ouch! (It doesn't get any more favorable as it goes along either.)
And on Justice Barrett:
The developing challenge with Justice Barrett is not whether she understands originalist methodology. She does, and articulates it well. Rather, the debate is over how much evidence of original meaning she demands before following original meaning. From Fulton to Brackeen to Rahimi, she wants a perfectly-compelling case to persuade her. Otherwise, Justice Barrett's mind is made up. I'm not sure why she has adopted this high burden. But the upshot is that in any given case, so long as Barrett convinces herself that lawyers did not meet the burden, she will revert to some non-originalist form of judging. Justice Barrett would prefer to openly avoid originalism, rather than pretending to follow what she sees as shoddy originalism. She will let the perfect be the enemy of the good.
I'm substantially more positive on each of opinions, which I think are thoughtful, interesting and constructive. I think it's a positive step for the Justices to be working out their methodologies in public, in a sense joining the conversation that's been going on among originalist scholars And it's a positive step for originalism to have Justices taking it seriously as a methodology. I agree with much that's in each of the opinions, though I have at least one substantial disagreement with each of them. I'll see if I have time for some thoughts before this blog goes on a summer hiatus (which is going to be announced fairly soon).
Posted at 6:13 AM