Lawrence Rosenthal (Chapman University Dale E. Fowler School of Law) has posted Originalism Chokes: The 2024 Trump Cases (UC Law Constitutional Quarterly (forthcoming)) (63 pages) on SSRN. Here is the abstract:
By 2024, a majority of the Justices of the Supreme Court had expressed the view that to be legitimate, constitutional adjudication must be based on the original meaning of the Constitution’s text. Anything else, these Justices have argued, is illegitimate judicial policymaking. Yet, in what were likely the two most critical and high-profile cases decided in 2024, the Court, including its avowedly originalist Members, made no use of originalism. In the first case, the Court faced the question whether a State could bar President Trump from running for President under Section Three of the Fourteenth Amendment. In the second, the Court faced the question whether President Trump enjoyed immunity from criminal liability for an alleged conspiracy to overturn President Biden’s victory in the 2020 election. In both cases, a supposedly originalist Court abandoned originalism altogether.
This article represents the first effort to assess the 2024 Trump Cases from the standpoint of originalism, and to explore what these cases tell us about a self-proclaimed originalist Court, and originalism itself. As Part I demonstrates, the 2024 Trump Cases were thoroughly nonoriginalist. They rest on policy judgments about the perils of leaving the disqualification of presidential candidates to state courts, and the perils of exposing presidents to the threat of criminal liability. These policy judgments, made by a supposedly originalist Court, reflect what has been characterized as constitutional common law, not originalism. Part II demonstrates that the 2024 Trump Cases reflect the inescapable need for resort to constitutional common law. One can quarrel with the common-law judgments that the Court made in these cases, but it is hard to deny the need to utilize a common-law methodology. The 2024 Trump Cases suggest that even professed originalists, at least when confronted with the most important constitutional debates, doubt the ability of originalism to resolve those debates. That, in turn, raises doubts about the utility of originalism in a broad swath of constitutional adjudication.
Posted at 6:06 AM