This week the Supreme Court granted certiorari in two cases that may lead to originalist analysis.
In Ramos v. Louisiana, the issue is whether the rule of unanimous criminal juries under the Sixth Amendment applies to the states. In Kahler v. Kansas, the issue is whether the Eighth Amendment or the Due Process Clause requires a state to recognize an insanity defense.
Both issues are way outside my areas of expertise but on a quick look they seem to invite originalist analysis. Ramos asks the Court to overrule its prior decision in Apodaca v. Oregon (1972). Apodaca was decided in a time when selective incorporation was more accepted. As the Court's recent decision in Timbs v. Indiana indicates, selective incorporation is suspect these days (Timbs incorporated the excessive fines clause against the states unanimously without any hesitation). Partly I think this is a formalist impulse — it does not look right (to formalists) to have judges pick which rights are and are not incorporated based on their own intuitions (which is pretty much what Apodaca did). But I also think there is a historical sense that whatever else the Fourteenth Amendment did, it as a general matter was intended to extend the Bill of Rights to the states. In any event, I would think that to overrule Apodaca the Court will need strong historical evidence that the unanimous criminal jury was a well-established right in 1868. And if it turns out that the unanimous-jury rule is itself a dubious originalist interpretation of the Sixth Amendment (which does not on its face say juries must be unanimous), that would be a reason to keep Apodaca.
In Kahler, the historical angle also could be important. My understanding is that the insanity defense in some form has ancient roots (at least in the death penalty context). If that's right, it could play a role in persuading Justices that are not generally sympathetic to such claims.
In sum, Kahler and Ramos are both cases in which historical/originalist arguments may be deployed to reach politically liberal results.
UPDATE: Garrett Epps has thoughts on the grants in The Atlantic. (Via How Appealing).
Posted at 6:54 AM