With apologies for the amount of space devoted on this blog to CFPB v. Community Financial Services Association of America, here is a further thought that I think hasn't been sufficiently emphasized.
Originalism skeptics (including my friend Eric Segall) argue that originalism doesn't actually determine any Justice's vote; it is (they say) only used to justify positions Justices reach for other reasons. I think that is not so, and I have various examples — and now we have another one. Justice Thomas wrote the majority opinion in the appropriations case, upholding the funding structure of the CFPB. But there's no reason to suppose that Thomas preferred that outcome on policy grounds. As a matter of separation of powers, the funding structure gives up some of Congress' power of the purse by establishing perpetual funding (presumably as a partisan move by Democrats to make it harder for later Republican majorities to defund the agency). Thomas, who is broadly sympathetic to separation of powers and suspicious of Congress surrendering its powers (as in, for example, delegation of legislative power), likely thinks the perpetual funding ploy is bad policy. And one may speculate that he does not think much of the substance of the CFPB's mission (created, as it was, by liberal Democrats). So why did he vote as he did? I think it's clear he concluded that the Constitution's original meaning did not bar the funding structure and for that reason he voted to uphold it, even though he did not like that outcome as a policy matter. If Thomas were instead secretly a living constitutionalist, using originalism to justify preferred policy outcomes, he could easily have joined Justice Alito's dissent (which is a plausible account, although I think it is unpersuasive for the reasons Thomas gives in his majority). Assuming Thomas doesn't like the CFPB structure (which I think is a very good assumption), originalism is the only explanation for his vote. That's the way originalism is supposed to work, and why it promotes the rule of law over the rule of judicial policy intuitions.
(To be clear, I'm not saying that Justices Alito and Gorsuch in dissent voted policy preferences over originalism. Rather, I think they found their originalist case more persuasive — originalists often disagree on the original meaning. But since we may speculate with some confidence that their reading of the original meaning happened to align with their policy preferences in this case, it's harder to prove their motivation.)
Posted at 6:19 AM