After a couple of months to think about it, I have a few thoughts on originalism and the Supreme Court's recent term. The first is that (despite initial appearances) the term ended up with a significant degree of agreement among the originalist-oriented Justices.
In the late Spring, there was talk among commentators (including on this blog) of divergence or even chaos among the Court's originalist-oriented Justices, especially after cases like Rahimi and Elster. Justice Gorsuch tried to combat this impression in his concurrence in Rahimi, in which he said in effect that they (the originalist-oriented Justices) had broad agreement on core principles and only differed in hard cases on applications. This did not seem too convincing at the time, especially coming in a case in which the six originalist-oriented Justices wrote five conflicting opinions.
But Gorsuch knew something the commentators did not, which was that the originalist-oriented Justices would come together in the leading originalist-oriented decisions at the very end of the term: Loper Bright, Jarkesy and Grants Pass. (I leave aside for now Trump v. U.S. and NetChoice, neither of which were originalist-oriented opinions). Loper Bright (holding that courts should not defer to agencies' legal interpretations) had all six in full agreement with enthusiastic supporting concurrences from Gorsuch and Thomas. Jarkesy (finding unconstitutional the SEC's system of administrative adjudication) had all six in agreement, with an enthusiastic supporting concurrence from Gorsuch (joined by Thomas). And Grants Pass (rejecting an Eighth Amendment challenge to anti-camping ordinances) again had all six in agreement, with an enthusiastic supporting concurrence from Thomas. (Each case drew a nonoriginalist dissent from the other three Justices).
Notably, the six Justices came together on these originalist-oriented decisions despite some unhelpful precedent. Loper Bright of course directly overruled Chevron ; Grants Pass avoided Robinson v. California (1962) (on which the dissent relied), and Jarkesy avoided Atlas Roofing Co. v. Occupational Safety and Health Review Commission (1977) (on which the dissent relied).
I conclude from this that Justice Gorsuch was basically right in Rahimi that the originalist-oriented Justices have a core agreement on common principles, and moreover that they find those principles to produce determinate outcomes on important questions. Rahimi and Elster were truly difficult cases under originalist principles, so it should not be surprising that they led to some intra-originalist disagreement (they also divided originalist commentators). But that should not have suggested that the Justices would not be able to find common ground in case where originalist principles pointed in a clearer direction.
Finally, with a clear originalist path, the Justices were not troubled by nonorignalist precedents, either those directly on point (Chevron) or those at least arguably pointing to a different path (Robinson and Atlas Roofing). Thus there appears to be a strong judicial consensus on what others have called the gravitational force of originalism. The challenge that remains for them to work out is what to do when the originalist path is not so clear.
Posted at 6:11 AM