This speech was given at the beginning of the Originalism Works in Progress Conference on Feb. 5 (and therefore prior to the tariffs decision in Learning Resources).
Each year at the beginning of the conference, I use this time to highlight what I regard as some of the most important events concerning originalism in the past year.
In recent years, most of the biggest originalist events were Supreme Court decisions such as Loper Bright or Bruen. By contrast, in the past year, the Supreme Court has been relatively quiet about originalism. Certainly, the interim docket and its responses to the Trump Administration’s actions have raised many significant legal issues, but in the main they have involved judicial organizational issues that have not turned on originalism.
Trump v. CASA
The biggest originalist case from the Court in the past year was Trump v. CASA, which involved statutory originalism, albeit a statute from 1789. Here, the Court in an opinion by former federal courts professor Amy Coney Barrett, held that the traditional equity power, which had been conferred on the courts by statute, did not encompass universal injunctions. The Court engaged in an originalist analysis, relying on an understanding of the equity power as it existed at the time of the statute’s enactment. But in a refrain that has become very familiar, the Court stated that while no “exact match” for universal injunctions was necessary, one did need a “founding era antecedent.”
To me, what is most striking is that the decision appeared to end – at least to a significant extent – universal injunctions. For many years, such injunctions – despite their peculiar features and their significant departures from long standing notions of judicial power – seemed a deeply embedded part of our legal landscape. But now they appear to be gone.
Skrmetti
Perhaps the most politically salient Supreme Court case of the last year was Skrmetti, where the Supreme Court held that a law that forbade prescribing puberty blockers to minors for gender identity purposes, did not classify based on sex or transgender status. Three members of the majority also indicated that if the law had classified based on transgender status, they still would not have subjected it to heightened scrutiny.
But in contrast to CASA, there was very little originalism in Skrmetti. Instead, the majority opinion largely relied on precedent and existing doctrine. Even the separate opinions of Barrett and Alito, which concluded that transgender status was not entitled to heightened scrutiny, did not invoke originalism. Instead, both Barrett and Alito relied on a Carolene Products oriented analysis.
While it is not entirely surprising that the Court failed to invoke originalism – after all, it was a Fourteenth Amendment case – still, this was a case of first impression, especially as to the transgender scrutiny issue raised by the concurrences. And therefore one might have imagined that this was a good opportunity for Justice Thomas or another justice to introduce originalist analysis of the Amendment, if they were so inclined. But they were not.
Unitary Executive
One of the originalist issues that has been most talked about is the unitary executive and the constitutionality of independence agencies. While the Slaughter case has not yet been decided, that is not my primary focus. Instead, it is the originalist debate that has occurred over the last year – and really over the past generation – on this issue.
This debate – which has produced significant originalist work on both sides, with various positions represented – has generated a tremendous amount of new information and analysis about the issue. As compared to the time when I first confronted the issue back at the Office of Legal Counsel when Morrison v. Olson was decided, someone studying the issue today will be far better informed.
To me, this shows how originalist progress can occur. For many years, one often heard the criticism that one could not know enough to assess the original meaning on a variety of issues. But these days the common criticism is different. It is that the history does not show a consensus about an issue when the Constitution was enacted. From my perspective, this is a big improvement.
It is worthwhile noting why such academic progress might have occurred. Back when the Supreme Court did not really care about originalism, there was much less incentive for scholars to do originalist research since it would not influence the Court. But when the Court reads and responds to this literature, the incentives are changed and a tremendous outflowing of scholarship is often generated.
Of course, we will see how much the Court grapples with this scholarship in Slaughter.
Books
In the last year, there have also been at least four significant books that address originalism and related topics.
The first is Amy Coney Barrett’s book, Listening to the Law. While I expected to agree with her book, I also found it to be surprisingly good – surprisingly only because it was an introductory book. The book does several things, including talk about the Court’s inner workings, Barrett’s background, and the history of the Constitution.
But I found Barrett’s defense of her own legal approach to be especially well done, particularly in a book designed for lay people. It is a worthy successor to her mentor’s A Matter of Interpretation, which I assume Barrett had in mind. Still, I wish that Barrett had not followed Scalia in one respect – I wish she had mentioned the Privileges or Immunities Clause as the source of fundamental rights rather than relying on substantive due process.
The second book is Mark Tushnet’s Who Am I to Judge?, which argues against using a constitutional theory to decide cases, but instead to do so based on judicial craft. While not arguing only against originalism, I think it is clear that originalism is Tushnet’s primary target. Tushnet raises some important points about the difficulty of applying a constitutional theory, such as his argument that constitutional theories are too simple to handle the complexity of constitutional decisionmaking. Still, I am very skeptical that judicial craft – in the form of reasoned judgment – is preferable to a well considered constitutional theory. I am quite confident that Tushnet and I would disagree about what reasoned judgment looks like on the Court.
Jill Lepore’s We the People: A History of the U.S. Constitution is the third book. While I haven’t read this 700 page tome, John McGinnis and I responded to a shorter version of the book in the Atlantic. Lepore criticizes originalism for making it harder to amend the Constitution, which we found puzzling. An important claim in our book, Originalism and the Good Constitution, is that the constitutional amendment process functions poorly in part because of nonoriginalism and that following originalism would improve it. After all, if the Court can update the Constitution, there is far less need to go through the difficult process of amending it.
And finally there is Richard Primus’s significant book The Oldest Constitutional Question: Enumeration and Federal Power, where he argues that the standard enumerationist account of the Constitution’s original meaning is problematic. Richard does not claim his anti-enumeration view is the single original meaning. Instead, he argues the standard enumerationist view was strongly contested and that practice has been inconsistent with that account. Thus, Richard – like many other critics of originalism, including Tushnet – relies on the lack of a consensus and on later practice.
These four books are all important ones. One is by a Supreme Court Justice and the other three are either from Harvard University Press or by Harvard Professors. They indicate, if we needed more evidence, just how important originalism has become.
Posted at 8:00 AM