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01/02/2018

Erwin Chemerinsky on the Most Important SCOTUS Stories of 2017
Michael Ramsey

In the ABA Journal, Erwin Chemerinsky: The most important SCOTUS stories of 2017.  Number one is, naturally, "The nomination and confirmation of Neil M. Gorsuch."  But in the ensuing four paragraphs of discussion, Dean Chemerinsky does not mention the word "originalism."  (He does note that "thus far, he has voted with Justice Clarence Thomas 100 percent of the time," which he describes as "consistently [being] a very conservative vote.")

I think this misses an important part of the story.  Justice Gorsuch was nominated and confirmed as an outspoken textualist/originalist.  He recently reaffirmed that orientation in a strongly worded speech at the Federalist Society national convention.  Prior to his nomination, commentators predicted that Justice Scalia's textualist originalism would become increasingly irrelevant after his death.  That does not appear to be the case, however.  It seems especially important to constitutional theory and interpretation that Justice Gorsuch is not just a "very conservative vote" but an originalist vote (and an articulate originalist voice).  Obviously that does not mean that the Court will be reliably originalist in the near future; but it means that originalism will remain an important part of the Court's discourse, and hence an important part of academic and political commentary about the Court.

(Via How Appealing).