Does Originalism Have a Future After Scalia?Michael Ramsey

Eric Posner Says No: Why Originalism Will Fade.

Larry Solum says yes, in a moving tribute to Justice Scalia: Not Fade Away (quoting Buddy Holly, of course). Some excerpts (but don't miss the whole thing):

Scalia's keen intellect and forceful rhetorical style had a transformational effect on the configuration of jurisprudential space.  Before Scalia originalism was "off the wall" and after only a few years, it was "on the table."  Strong forms of originalism are still very much the exception and not the rule, but Scalia (and scholars who built on his legacy) had a powerful effect on the jurisprudential gestalt.  In the early 1980s, it would have been almost unthinkable for any originalist to be appointed to the federal bench.  In the opening decades of the twenty-first century, judicial nominees of even a a very progressive President are likely to affirm that "we are all originalists now" and even the author of an article entitled "Originalism Is Bunk" may feel compelled to announce that almost all constitutional theorists accept that original meaning ought to be considered as at least one substantial factor in constitutional discourse.

As I write these words, I am more than 30,000 feet in the air, flying from Washington, DC, where Justice Scalia lies in state at the Supreme Court, to San Diego, California, where every year scholars gather for what is known as "OWiP"--the 7th Annual Originalism Works-in-Progress Conference.  At that conference, I will be presenting "The Constraint Principle"--a work in progress that argues for the proposition that constitutional practice should be constrained by the original public meaning of the constitutional text.  OWiP grows every year, with an increasing presence of young and sophisticated originalist scholars.  I am amazed.

Am I writing for the eight Justices who currently sit on the Supreme Court?  In small part, yes, but without illusions about the likelihood of immediate influence.  Perhaps Justice Thomas will pick up an idea or two.  Perhaps a left-of-center Justice will do a better job making some originalist point.  But I harbor no illusions that a 60,000 word law review article will move the Supreme Court next term or five, ten, even twenty terms from now.  Such movement takes time.  A shift in the jurisprudential gestalt from our realist era that embraces nakedly ideological judging to an invigorated rule of law that takes stare decisis, statutory texts, and original meaning seriously seems likely to take decades.

The remarkable thing about Justice Scalia is that he moved the Court so far so fast.  This did not happen in a vacuum; it could not have happened without a supporting political infrastructure.  But it did happen.  The long range consequences of the gestalt shift initiated by Justice Scalia are too distant to see clearly now. ...

I agree, and I think Professor Posner underestimates the "gestalt shift," in part by ignoring Chief Justice Roberts and Justice Alito. It's true that they are perhaps not as pure originalists as Scalia was.  But they are, in a term I've used frequently here, "originalist-oriented." They are highly receptive to originalist arguments, especially in areas where there is not much precedent -- much more so than earlier supposedly conservative Justices.  And it's plausible that the next Justice will be as well, depending on how the appointment process plays out.  Or the next one.

RELATED:  Liberty Law Blog has this symposium on Justice Scalia's influence (contributions from Ralph Rossum, Mark Pulliam, Hadley Arkes, Even Bernick, Gerald Russello, and me).