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Lorianne Updike Toler: Law Office Originalism
Michael Ramsey

Lorianne Updike Toler (Information Society Project, Yale Law School) has posted Law Office Originalism (103 pages) on SSRN.  Here is the abstract:

The Constitution’s framing history features heavily in Warren and Burger Supreme Court opinions overturning established precedent. This led Alfred Kelly in 1965 to famously criticize the Court for doing “law office history,” cherry picking shallow historical evidence to achieve a desired result. With the elevation of William Rehnquist to Chief Justice in 1986, neo-critics hurled the epithet anew at both the Rehnquist and Roberts Courts—particularly at the self-identified Originalist Justices who claim Framing history should drive interpretation and cabin judicial discretion. Although Originalism as “law office history” has become an a priori assumption for much of legal academe, none has provided a systematic review of these claims, including the Supreme Court’s historical methodology and its purchase power to cabin judicial will.

This empirical study—which canvases the entire universe of 299 references to the Constitutional Convention in 239 cases—seeks to supply that deficiency. Based on the results gathered in its prequel, Pre-Originalism, and to test Originalism’s constraint function, this study hypothesizes that 1) the Court’s historical methodology is generally bad, 2) that Originalist Justices’ historical methodology was no better; and 3) that Justices’ engagement in better historical methodology would result in significant political deviations. In that the Court references the Convention without having looked at the primary record or, indeed, any source nearly half of the time, over-relies on non-historical secondary sources for context, and fails to cite to both primary and secondary sources in all but a small minority of its references, the first hypothesis was confirmed. Likewise, based on a comparison of three Originalist Justices to three other Justices with jurisprudential commitments and the Court overall through, the second hypothesis was also confirmed. Finally, through a regression analysis comparing judicial methodology to historical depth, an interactive variable of political deviation, and several other controls, the third hypothesis was rejected in part, especially for Justice Thomas. However, in that the regression analysis shows that deeper and more primary Framing sources can create significant political deviations for the two surveyed Justices without jurisprudential commitments and demonstrated non-significant trends for all other surveyed Justices other than Justice Thomas, the study suggests that better history may have some constraining potential. In particular, better historical methodology, particularly citing more primary sources, could be associated with Justices deviating from expected political outcomes in significant ways.

To meet these obligations and improve the constraint function of any use of history, Originalism included, this article makes multiple practical suggestions for improving the historical methodology of the Court and the greater legal community.