The Confirmation of Amy Coney Barrett
Mike Rappaport
There is much to say about the confirmation to the Supreme Court of Amy Coney Barrett. Here are two observations on its implications for originalism. First, Barrett was an unambiguous originalist at the time of her nomination, more so than any other justice. Gorsuch was an originalist, but he had not written so clearly in favor of it. Kavanaugh said he was an originalist, but had not described himself in print that way. If memory serves, Thomas and Scalia did not have paper trails in favor of originalism. Bork did, but he was not confirmed. But Barrett had several articles on originalism and acknowledged it proudly at the hearings.
Second, Barrett appears to represent the fourth originalist on the Court. Thomas and Gorsuch are clear originalists and Kavanaugh appears to be one (but time will only tell how much). Roberts and Alito are at most fellow travelers. So with Barrett, that makes four justices. Originalists are now a plurality on the Supreme Court, a larger voting block than the three progressive nonoriginalists.
That last line is worth repeating. There are now more originalists on the Court than progressive nonoriginalists. Wow, I never really imagined that I would live to see it.
Of course, there is not a majority of originalists. Not yet, anyway. Of course, this might be the highwater mark, but that is not inevitable.