The Supreme Court's 2019-2020 Term opens with several cases of potential originalist interest, including on the first day:
(1) Kahler v. Kansas (argument today): Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. The case is likely to raise the originalist questions (a) whether the insanity defense (or rather, what form of the insanity defense) existed in the eighteenth century, and (b) whether that matters.
(2) Ramos v. Louisiana (argument today): Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict. My thoughts on this one are here and especially here. There is a good possibility of a left/right alliance to overturn the embarrassment of Apodaca v. Oregon.
(3) Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC and related cases (argument 10/15/19): Whether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico. These cases may lead to some interesting questions about the original understanding of "officers of the United States."
And, although they aren't constitutional cases, Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (argument 10/8/19) ask whether Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation or transgender status, and raise important questions of statutory originalism — namely, whether the statutory text literally prohibits such discrimination, and if it does, whether it matters that the enacting Congress probably did not intend to prohibit such discrimination. See William Eskridge: Textualism’s moment of truth and Stephanie Taub & Michael Berry, Hiding elephants in mouseholes: The original meaning of “discrimination on the basis of sex” (plus other contributions to the SCOTUSBlog symposium on the cases).
And that's just October.
UPDATE: As reported at SCOTUSBlog, as expected the argument in Kahler involved multiples references to and arguments from the traditional and long-standing insanity defense.
After considering this question a bit more, it seems to me that actually this long-standing practice is irrelevant from an originalist perspective. Kahler is challenging his conviction under the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process). But the insanity defense is part of the substance of the offense. It is neither procedural nor an aspect of punishment.
It cannot be that states must conform the substance of criminal law to what prevailed at the founding. States routinely create new offenses and modify existing offenses by changing their elements or eliminating defenses. That these changes may alter traditional approaches is not a matter of constitutional concern.
For example, suppose in the founding era it had long been permitted to use deadly force to protect private property (that is, it was a defense to a murder charge that the defendant was protecting his property). But over time some states decided this was not an appropriate defense: people should not be excused for killing merely over property. So the defense was abolished. Would this raise Eighth or Fourteenth Amendment problems on the ground that the protection-of-property defense was long-established? I don't think so, and I don't see why the insanity defense should be different.
Posted at 6:08 AM