There’s a genuine Captain Renault moment going on over at Reason magazine today. Or maybe the conservative legal scholars posting hot takes between classes legitimately never saw originalism with clear eyes before now. I’m honestly not sure which explanation would be worse. In any event, journey with us through three posts arising from Federalist Society discussions about the upcoming Dobbs case as the “conservative legal movement” frets that its new-found Supreme Court majority might stop short of fully obliterating Roe v. Wade and wiping away nearly a half century of precedent.
First is Josh Blackman’s post about a 3L FedSoc student who recently wrote him complaining that anything less than a full overruling of Roe would send the student “kicking and screaming, to give theories like ‘common good constitutionalism’ a real hard look”:
This message is representative of what I’ve been hearing. There are many, many consequences for originalism, if Dobbs reaffirms Roe and Casey. Bostock was just a warning shot. Dobbs could severely wound the movement I care very deeply about, and indeed the rule of law more broadly if conservatives seek other channels for reform.
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So Blackman is ready to accept the student’s premise that there are “consequences for originalism” if it fails to deliver the outcome conservative politics demands. It’s a difficult sentiment to square with the notion that originalism is some kind of pure, uncut standard of judicial interpretation, though one that we’ve already seen in action. Conservative Second Amendment jurisprudence already juggled the fact that the “original public meaning” of the amendment clearly contemplated strict gun regulation — up to and including George Washington marching an army to whoop citizens trying to stockpile their own weapons — by signaling that “original” can be rewritten to mean folks that lived four score and seven plus years later.
“Original” is less a time period than a state of mind after all!
This prompted ASS Law’s Stephen Sachs to retort:
People can call themselves “originalists” and still be wrong about the original Constitution, just as they can call themselves “historians” and still be wrong about history. The theory isn’t there to give us an easy twelve-step method for churning out right answers. It’s there to explain what makes those answers the right ones. If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?
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Counter: originalism is there to give us an easy 12-step method for churning out right answers. Or, more accurately, to gaslight the public into believing there’s a plug-and-play method to achieving right answers. The simplistic, if unrealistic, appeal of the whole theory is that other models of interpretation require subjectivity while “originalism” bypasses the balancing tests and confusing models to spit out the only correct answer. If the theory can’t provide certainty, then it fails to satisfy the terms of its own rigged effort at self-justification.
Bringing us to Orin Kerr’s synthesis of these two takes:
A few years ago, the prevailing narrative was that originalism was primarily a theory of what the right answer should be as a first principle — recognized, at least in the past, as a separate question from what a Court should do when precedents on the books were different. As Marc DeGirolami put the point, originalism was understood as a theory of interpretation, while stare decisis was understood as a theory of adjudication. Originalist theorists then pondered what the relationship between the two should be, without an obvious consensus view emerging.
If Josh’s observations are accurate, that perspective has been dropped (at least among attendees he spoke with) in favor of a transactional view: The point was to get to a certain result, and the only question is whether the result will be achieved or if some illegitimate barrier (the liberal media, etc.) might get in the way. Perhaps this is the difference in perspective between academic theorists and the practitioners who most populate the national conference. Or perhaps it’s the difference between what gets said before the Court has new members that make a goal possible versus what gets said after that. I don’t know. But it seems like a notable shift.
Friends, it’s not a notable shift.
What it is, is the culmination of everything that originalism’s critics loudly proclaimed about the crackpot legal theory for decades. We all said, “this seems like a vapid fig leaf of a theory to just enact contemporary GOP policy” and conservative law professors said, “no, no, it’s super serious and apolitical.” As critics are vindicated here, it’s either cynical or comical for conservatives to react with surprise.
Because even if there were some true believers out there willing to get high on the originalist supply, Blackman’s unnamed 3L lays out reality the way the mouths of babes are always meant to: it was always about outcome. Originalism never held any Platonic appeal, it provided a malleable interpretive theory in a PR-friendly package. If originalists can’t deliver Republican party policy under the guise of an unimpeachably clear reading of the Founders’ intent, then the conservative movement will happily move on to a theory that does.
A Message From A Current 3L and FedSoc Officer About Dobbs [Volokh Conspiracy]
Originalism and the Result in Dobbs [Volokh Conspiracy]
More on Dobbs, Originalism, and Conservative Legal Thought [Volokh Conspiracy]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.