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One external challenge to originalism comes from the Right. Some readers may not know that there is a Republican school of thought that has an attitude of hostility, or at least wariness, toward originalism. As originalism and the Supreme Court have come under increasing scrutiny, those voices have grown louder. Last year Harvard Professor Adrian Vermeule proposed an alternative to originalism: common-good constitutionalism. Vermeules conclusion, as described during the panel by Newsweek Opinion Editor Josh Hammer, is that we should instead overtly go for substantive and normative conservative outcomes.

In contrast, the landmark decision Bostock v. Clayton County has stirred debate among adherents of originalism, with some supporting and some opposing Justice Gorsuchs reasoning. Some of those perspectives were on display in a discussion of Textualism after Bostock. Textualism is sometimes considered the statutory analogue of originalism, which is often thought of as a method of constitutional interpretation.

In Bostock, both Justice Gorsuchs majority opinion and dissenting opinions by Justices Alito and Kavanaugh followed textualist approaches, but they arrived at radically different conclusions. Professor Tara Leigh Grove favored Justice Gorsuchs approach, which she described as we focus on the statutory language, and thats that, in contrast to the more flexible textualism applied by the dissenting justices, which considered factors such as social context and practical consequences. Professor Josh Blackman, in contrast, thought Justice Gorsuch failed to acknowledge that the Courts precedents were inconsistent with textualism. Textualism is apolitical in that it looks to the meaning of a word, as opposed to a question of policy values in a statute, said Jessie Mann 23. It was fascinating to hear the different arguments for how staunch Justice Gorsuch was in his Bostock opinion.

Popular misconceptions are another challenge faced by originalism. In a discussion of the public perception of originalism, Lat addressed some common misunderstandings. Originalism, at least in its most prominent version, focuses not on the Founders intentions but on the Constitutions original public meaning. Nor does originalism demand strict constructionism or anachronism. The Constitution can be construed as broadly as necessary to embrace all it originally meant and its original meaning can be applied to new contexts.

These misconceptions persist. Lat noted that folks on the street tend to think of originalism as antiquated and harsh. I refer readers to the penultimate episode of Netflixs A Series of Unfortunate Events, where a pseudo-originalist court requires everyone to wear blindfolds since justice is blind. But I think originalisms biggest challenge is persuading liberal Americans that it is more than a Republican power play. As one of Fridays panelists noted, perhaps the easiest way to advocate for originalism is to point out cases where it has not favored Repubican outcomes, like Bostock and certain Fourth Amendment opinions authored by Justice Scalia. Still, it is reasonable to expect skepticism to continue so long as the Supreme Courts originalists are all conservatives.

James Ford 23 expressed this kind of skepticism, stating that originalism is just paleo-conservatism with more steps. Many Democrats agree, if calls for court-packing are any indication. The challenge for the Supreme Courts originalists is to persuade observers that their methodology truly is non-partisan and to do so at a time when the stakes are higher than ever. In the balance hangs not only originalisms reputation but also, just maybe, the Supreme Court as we know it.

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js3hp@virginia.edu

Read more from the original source:
Originalism in the Twenty-First Century Virginia Law Weekly - Virginia Law Weekly