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07/01/2018

Michael Dorf on Originalism and NIFLA v. Becerra
Michael Ramsey

At Dorf on Law, Michael Dorf: SCOTUS Crisis Pregnancy Center Case Shows Originalist Justices Are Originalist Except When They're Not.

[The Supreme Court's] decision in National Institute of Family Life Advocates (NIFLA) v. Becerra ... is telling in at least one other respect. Justice Thomas is often and appropriately held up as the most originalist justice, at least as evaluated by his professed commitments. And yet his [majority] opinion contains not a single word about the original meaning of the First Amendment or the Fourteenth Amendment (which makes the First applicable to the states).

...

Justice Thomas's opinion is thoroughly doctrinal. He makes no effort whatsoever to reconcile the existing doctrine or his application of it with the original meaning of the First Amendment or the Fourteenth Amendment.

That's odd. In numerous other cases, including free speech cases, Justice Thomas has refused to apply existing doctrine on the ground that it was inconsistent with the original understanding. For example, he dissented from the Court's invalidation of a law forbidding minors from purchasing or renting violent video games on the ground that the ruling did "not comport with the original public understanding of the First Amendment."  In other cases in which Justice Thomas has gone along with precedents that he regarded as inconsistent with the original understanding, he has frequently written separately to say that he was only doing so because the parties had not briefed and argued the question whether to overrule existing precedent on originalist grounds. So why not in NIFLA?

I hadn't seen Professor Dorf's post when I wrote this post complaining about the disappointing lack of originalist analysis last week -- I should have included NIFLA v. Becerra as well.

But, does Professor Dorf (a nonoriginalist) have any ground for complaining about this?  As Saul Cornell has recently explained to us, nonoriginalism (in some forms, anyway) views textualist/historical analysis as just one "modality" of constitutional interpretation.  Why can't Justice Thomas shift modalities now and then?  Isn't that exactly what nonoriginalists want him to do? It's originalists that should be disappointed, not nonoriginalists.

From later in the post, I very much like Professor Dorf's description of Justice Kennedy's concurrence:

Justice Kennedy's invocation of the Founders here is not originalism in any sense that distinguishes originalism from any other methodology. It is, rather, what I once called "heroic originalism," in which the author of an opinion associates some idea he or she favors with the prestige of the founders but makes no serious effort to connect the contemporary idea with any prior linguistic or practical understanding. The Brandeis concurrence in Whitney v. California is perhaps the most famous example of this genre. Heroic originalism invokes the original understanding of the text in the most general terms, disguising (for anyone not paying close attention) the effort to fill in the blanks with a contemporary view.