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30 posts from April 2022


Josh Blackman & Seth Barrett Tillman on Disqualifying Candidates for Insurrection
Michael Ramsey

In the New York Times, Josh Blackman & Seth Barrett Tillman: Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene.  From the introduction:

The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.

These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)

But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.

If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.


Appointments that Are Incomplete When a New Congress Meets Either Lapse or Can Be Reconsidered by the Senate
Andrew Hyman

The Office of Legal Counsel, in the U.S. Department of Justice, issued an opinion on April 6 that is raising a lot of questions and criticisms.  For instance, over at the blog Bench Memos, Ed Whelan has a two-part analysis (I and II) calling this OLC opinion “deeply defective.”  The OLC opinion is titled “Authority of the President to Prospectively Appoint a Supreme Court Justice.”  My reaction is summarized in the title of this blog post, which is at odds with the OLC opinion.
In the past, following confirmation by the Senate of a new judge to the Supreme Court, presidents have sometimes issued a commission before the seat is actually vacated, instead of following the usual practice of waiting until a vacancy occurs.  Ed Whelan describes the two known instances: 
President Grant’s commission of Edwin M. Stanton on December 20, 1869, specified that it would “take effect on or after February 1 [1870],” the date on which Justice Grier’s resignation would take effect, and President Harding’s commission on September 5, 1922, of George Sutherland to replace Justice Clarke likewise stated “commencing September 18, 1922,” the date on which Clarke’s resignation would take effect.
But what if the commission does not say when it will take effect?  This problem would become acute when party control of the U.S. Senate changes, and the new Senate is potentially left helpless to do anything about the situation even though the vacancy has not even arisen yet. Apparently, the recent OLC opinion does not see this as a problem much less an acute one: 
The President’s signing of [a judge’s] commission would complete her appointment, bringing to an end the President’s and the Senate’s role in the process.
This is an assertion that the Senate would have no role, nor would the President have any role, even if a mid-term election happens after the president signs the commission but before the vacancy actually arises.  OLC mentions that a President cannot “forestall the rights and prerogatives of [his] own successors,” but that weak limitation makes OLC's theory internally inconsistent, because the President could resign in order to terminate a SCOTUS appointment before the vacancy occurs.
The natural inference from the Constitution is that the sequence for getting new people onto the Supreme Court generally should be as follows: (1) vacancy, (2) nomination, (3) consent of the Senate, (4) appointment, (5) commissioning, and (6) oath.  But in actual practice, an exception has developed; as OLC explained in 1968 (emphasis added), “from the earliest years the Senate has exercised the power to confirm nominations to offices in which a vacancy in the near future is anticipated to take effect....”  In such cases, the usual sequence may be modified so that, as President Kennedy explained in 1961, the "Court may not be handicapped for any time during which a vacancy might otherwise exist."  The exception to the usual constitutional sequence ought to be limited to its legitimate purpose, rather than extended unnecessarily across national elections. Following an election, either the inchoate appointment must lapse, or else the Senate has every constitutional right and power to reconsider a nomination and withdraw its consent.  After all, the Appointments Clause makes clear that an appointment can only happen “with” the consent of the Senate, so the Senate’s consent is needed throughout the appointment process, until the appointment actually takes effect.
For anyone seeking scholarship on this subject, I recommend this starting place: "Anticipated Judicial Vacancies and the Power to Nominate" by Matthew Madden, Virginia Law Review, Vol. 93, No. 4 (Jun., 2007), pp. 1135-1174.  It's available on SSRN.  Madden argues that "there is a vacancy prerequisite to the operation of the Appointments Clause that requires either an actual vacancy in the office to be filled, or a sufficiently definite and irrevocable anticipated vacancy in such an office."  The recent resignation statement by Justice Breyer said he “intend[ed]” his retirement decision to take effect at the end of the Court’s term, but intentions can of course change.


Gregory Ablavsky Reviews Akhil Amar's "The Words That Made Us"
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted Akhil Amar's Unusable Past (Michigan Law Review, forthcoming) (24 pages) on SSRN.  Here is the abstract: 

This essay reviews Akhil Amar's recent constitutional history of the early United States, The Words That Made Us. In this volume, Amar seeks to offer a "fresh story of America" that provides a "usable past." I argue that the book fails on both fronts. On the contrary, much of what Amar peddles is very old, ignoring generations’ worth of scholarship while parroting a centuries-old nationalist constitutional hagiography. In particular, he believes that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. His effort to defend them and the Constitution from critics paints him into difficult corners, including endorsing some dubious exculpatory narratives around the exclusion of women, Black people, and Native nations in early America.

One way forward toward a more inclusive, more usable constitutional history, I argue, is in the concept of a "constitutional conversation" that Amar uses to frame his book. In Amar's hands, this conversation becomes a narrow reconstruction of debates among what he calls the "Big Six" Founders. But for a generation, historians and scholars, including many in law schools, have offered a broader vision of the constitutional conversation highlighting how non-elite people, including subordinated groups, accessed and shaped constitutional law. But the work of synthesizing these accounts in a broader constitutional history has only just begun. This work, I argue, will offer both a fuller account of the constitutional conversation and a more usable past for a nation increasingly recognizing that it has always been a diverse and fractious place.

Here is a link to Professor Amar's book The Words That Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books 2021) (noted on this blog earlier).

UPDATE: Larry Solum has some interesting thoughts here.


Emily Sherwin: Do Precedents Constrain Legal Decision-Making?
Michael Ramsey

Emily L. Sherwin (Cornell University - Law School) has posted Do Precedents Constrain Legal Decision-Making? (forthcoming in Timothy Endicott, Hafsteinn Kristjansson & Sebastian Lewis, eds., Philosophical Foundations of Precedent (Oxford University Press 2022/2023)) (19 pages) on SSRN.  Here is the abstract:

Judicial decision-making is constrained by determinate, authoritative rules laid down in precedent cases. Other proposed forms of precedent-based decision-making, including analogical reasoning, reasoning from the facts and outcomes of prior cases, and reasoning from legal principles, do not effectively constrain current decision-making. Analogical intuitions, in particular, may aid in legal reasoning by suggesting useful comparisons, but they do not constrain legal reasoning. Thus, in the absence of a determinate rule, judges must rely on their own reasoning about what outcome is best, given the facts at issue and the practical and moral aims of legal decision-making.

Agreed, and I take this to support my view that originalist judges should (at minimum) decline to extend non-originalist precedent).


Torben Spaak: Reasons Holism and the Shared View of Precedent
Michael Ramsey

Torben Spaak (Professor of Jurisprudence, Department of Law, Stockholm University) has posted Reasons Holism and the Shared View of Precedent (25 pages) on SSRN.  Here is the abstract:

One may plausibly distinguish two different models of precedent, the Common Law model, according to which precedents have binding force and are sources of law proper, and the Civil Law model, according to which precedents have persuasive force only and are sources of law only in a weaker sense. Although the two models thus differ in certain respects, they both assume (i) that a precedent is a precedent in relation to cases that are like the precedent case, and only in relation to such cases, (ii) that the ratio decidendi of a case is the general norm without which the precedent court could not rationally have decided the case the way it did, (iii) that following precedent is to act in accordance with such a general norm, and (iv) that the general reasons for following precedent are that doing so is a matter of fairness, and that it is conducive to predictability, stability, and economy of effort. In what follows, I shall refer to this as the shared view of precedent, and the question I shall be discussing is whether the shared view can be squared with a theory called reasons holism. The reason why there may be a problem is that if reasons holism is correct, and if it applies to legal reasons, there can be no general legal norms; and if there can be no general legal norms, questions will arise about what, exactly, the ratio decidendi of a case is, about what it means to follow precedent, and about the binding, or persuasive, force of precedent.

Although I shall later question this assumption, I begin by assuming that reasons holism is true, and I ask what the implications are of this assumption for the shared view of precedent. I shall argue (1) that if the usual reasons for following precedent are genuine, then any of these reasons may favor following precedent in some situations, but may favor not following precedent in others, and that this would threaten the shared view. I shall, however, also argue (2) that we may coherently conceive of these reasons as merely conventional reasons, and that therefore the shared view will not be threatened. Moreover, I shall argue (3) that if ordinary legal reasons are genuine, the ratio decidendi of a precedent cannot be conceived as a genuine general legal norm, that following precedent can therefore not be understood as action in accordance with such a norm, and that no alternative analysis of the ratio in terms of legal rules of thumb, or supervenience likeness, could be successful. Finally, I shall, however, also argue (4) that the theory of reasons holism turns out to be rather problematic, and (5) that even if it were not, exclusive legal positivists could still defend the shared view, on the grounds that legal reasons at all levels are merely conventional reasons.

Via Larry Solum at Legal Theory Blog, who says "Knocked my socks off.  Highly recommended.  Download it while it's hot!"

I'm not sure if it's relevant to originalism, but that's unusually high praise from Professor Solum so it seems worth noting.


Judge Sutton on Nationwide Injunctions
Michael Ramsey

In the recently decided Sixth Circuit case Arizona v. Biden (April 12, 2022), Judge Jeffrey Sutton concurring with some sharp words for nationwide injunctions:

The district court’s remedy—universally enjoining the National Government from enforcing the Guidance in any State in the country—also likely exceeded its authority. I do not take issue with the court’s decision to extend the remedy beyond the Southern District of Ohio as to the three state claimants. ... But it is one thing to honor a federal court judgment issued in favor of, say, Arizona by the Southern District of Ohio anywhere in the country. It is quite another to do so for the 47 States that did not participate in the lawsuit. I am not the first to question nationwide (or universal) injunctions (or remedies) that bar the federal government from enforcing a law or regulation anywhere and against anyone. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (mem.) (Gorsuch, J., concurring); CASA de Md., Inc. v. Trump, 971 F.3d 220, 256–63 (4th Cir. 2020) (vacated on other grounds); Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017).

I meet this concept with considerable skepticism. Article III grants the “judicial Power,” which extends only to specified “Cases” and “Controversies.” U.S. Const., art. III, § 2. Standing limitations, a prohibition on advisory opinions, distinctions between judgments and opinions all grow out of this language and the history behind it. The same is true of remedies, which emerge from a federal court’s equitable power. A valid Article III remedy “operate[s] with respect to specific parties,” not with respect to a law “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). That is why courts generally grant relief in a party-specific and injury-focused manner. See Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). In this same way, we do not remove—“erase”—from legislative codes unconstitutional provisions. Jonathan Mitchell, The Writ–of–Erasure Fallacy, 104 Va. L. Rev. 933, 1016–17 (2018). We merely refuse to enforce them in a case, thereby exercising “the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923). After a court has remedied a claimant’s injury, it is fair to ask what controversy remains for a court to adjudicate or remedy.'

Call them what you will—nationwide injunctions or universal remedies—they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case. The law already has a mechanism for applying a judgment to third parties. That is the role of class actions, and Civil Rule 23 carefully lays out the procedures for permitting a district court to bind nonparties to an action. Nationwide injunctions sometimes give States victories they did not earn and sometimes give States victories they do not want. They always sidestep Rule 23’s requirements. 

Plus citations later on to originalist scholar John Harrison and my colleague Mila Sohoni.

(Via Ed Whelan at NRO Bench Memos).


Vermeule and the Sense-Reference Distinction, Yet Again
Chris Green

Adrian Vermeule and a co-author, Conor Casey, have responded quite quickly to Judge William Pryor’s Against Living Common Goodism with an essay forthcoming in the Harvard Journal of Law and Public Policy’s Per Curiam supplement. The essay invents, for the purposes of criticism, a new view that blurs meaning and application: “thick originalism,” or “originalism in a substantive sense,” which would prevent any change in applications over time. There is no reason to think that Judge Pryor has ever subscribed to such a view. Raoul Berger is the only originalist I have ever found who, when confronted clearly with the sense-reference distinction, has consistently claimed (see here at 568 n.36 and 579-82) that his originalism is tied to reference, rather than the sense expressed in the constitutional text. Nevertheless, Casey and Vermeule complain at page 4 that Pryor fails to present an argument for this view: “What Judge Pryor needs is an argument that entails thick originalism, but no such argument is anywhere to be found.” Judge Pryor doesn’t need an argument, of course, for a position he does not hold. Like virtually all contemporary originalists other than Berger, Judge Pryor defines his view in terms of meaning, not application: “Today, most of the Justices of the Supreme Court are originalists—they maintain that the text of the Constitution has a fixed meaning, that the Constitution means now what it originally meant, and that the original meaning is binding on them as judges.”

Does Vermeule disagree with the bindingness of original meaning, as opposed to original application? In his book, he certainly did. He complained (p. 36) about being “enslaved to the original meaning of the Constitution.” But the new essay with Casey contains no such rejection. Indeed, in several places they now seem quite enamored with the master against which Vermeule’s book counseled rebellion. They call the fixity of meaning “thin originalism”: “the bare commitment to the claim that the meaning of a fixed text remains constant over time.” Added to the bindingness of the text, of course, that’s just originalism.  Elsewhere, indeed, Casey and Vermeule seem to endorse such bindingness. Page 6: “The classical legal tradition, as we show later, by no means licenses interpreters to ‘displace,’ amend or ignore the meaning of posited law.” A lack of license to amend the meaning of the Constitution is just what originalism is.

Casey and Vermeule suggest that originalism—i.e., the bindingness of original meaning—is prevalent in other countries too. Page 7: “From India to Ireland, judges respect the fixed enactments of legitimate political authority and the fixed meaning of those enactments.”  If “respect” means at least “do not violate,” that’s originalism. Nevertheless, they add at page 8, “It goes without saying that none of the legal systems we have mentioned employ originalism in any sense Judge Pryor would favor.” What? The sense in which Judge Pryor favors originalism is the sense in which original meaning is binding, not original applications. None of the sources cited in footnote 31, which follows, suggests that India, Ireland, or Germany (the three countries these sources discuss) treat the meaning expressed by their constitutional texts in their original contexts as anything other than binding. A few sentences later, Csey and Vermeule make clear that they mean only that India, Ireland, and Germany reject “originalism in any substantive sense,” i.e., the meaning-application-blurring form originalism rejected by everyone but Raoul Berger. As long as they “respect [i.e., comply with]… fixed meaning,” though, they certainly employ originalism in the sense that Judge Pryor favors.

Indeed, when they discuss the European Convention on Human Rights, Casey and Vermeule think originalism has even become obvious. Page 9: “Furthermore the meaning of this text is fixed; a word whose semantic meaning had changed entirely over time would obviously be read in the sense given at the time the treaty was concluded.” That’s how an originalist would read such words, of course, but not, one would think, someone who had written a book protesting against being “enslaved to the original meaning of the Constitution.” If Vermeule has changed his view, he should say so explicitly.

In criticizing “thin originalism” as inadequate, Casey and Vermeule repeat an assertion made many times over by Eric Segall (see here and here at 4-6): that a theory allowing changing fact-dependent applications is “a mode of interpretation that is equivalent to or indistinguishable from Brennanism” (p. 4) and “open to any and all changing applications and moral novelties that current generations may dream up” (p. 16). But, of course, the existence of some fact-dependence to our applications—the fact that constitutional meaning determines a function from the facts to applications that is non-constant—does not mean that we can reach just any application we might like—i.e., that that function would be surjective, covering the entire possible range of applications. As Justice Sutherland put it for the Court in Euclid v. Ambler Realty (see here at 10-12), changes in facts only allow a degree of elasticity to applications, and none at all for meaning.

At page 11, Casey and Vermeule complain, “If Balkin, Calabresi, Justices Jackson and Kagan, and the European Court of Human Rights are all employing a jurisprudence that is entirely compatible with Judge Pryor’s premises, then so was Justice Brennan.” Not so. Justice Brennan in 1985, like Vermeule in his book but not in the essay, rejects the bindingness of original meaning: “[T]he ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” The existence of a degree of elasticity to constitutional applications is entirely different from taking as our constitutional touchstone what words “mean in our time.” In mathematical terms, it is the difference between non-constancy and surjectivity. New constitutional meaning allows an interpreter to reach literally any result in the entire set of possible applications, based on the policy-based obsolescence of the meaning expressed by language in its original context. New constitutional applications based on new facts, by contrast, allow a fact-finder only to reach those in the range of the initial function from facts to applications.

Robert Delahunty & John Yoo: The 12th Amendment, the Vice President, and the Electoral Count
Michael Ramsey

Robert J. Delahunty (University of St. Thomas School of Law (Minnesota)) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace) have posed Who Counts: The 12th Amendment, the Vice President, and the Electoral Count (Case Western Reserve Law Review, forthcoming) (82 pages) on SSRN.  Here is the abstract:

Under the 12th Amendment of the U.S. Constitution, the Vice President opens the electoral votes for President before both houses of Congress. Would she have the constitutional authority to resolve disputes over the legitimacy of the electoral votes? If so, what types of disputes? This article argues that, while the constitutional text is ambiguous, its best reading makes the Vice President, as President of the Senate, the only federal institution to judge the legitimacy of electoral votes, subject in limited cases to judicial review. It also concludes, however, that the Vice President can only exercise this power over limited types of disputes originating from the states. If the Vice President receives only one set of electoral votes from the state institutions identified under state laws, she can only accept them as legitimate. She has no authority to decide whether the states’ electors were appointed in a constitutional manner. We argue that the 1887 Electoral Count Act cannot bind either the state legislatures or the Vice President in the performance of their duties under the 12th Amendment. On the facts of the 2020 election, no dispute over the electoral votes existed that justified intervention by the Vice President. States had certified their electoral counts, and no courts had halted the meeting of the electors or the reporting of their votes. But if the federal government were to receive two electoral slates from a single state, or a dispute has arisen within a state between the political branches of government and state or federal courts, the Vice President would have to choose which electoral votes to count and, in the process, judge their legitimacy.

I haven't looked closely at all of the authors' evidence, but I'm skeptical of even their limited view of the Vice President's constitutional power (see here for earlier Originalism Blog discussion of this issue).

Here's the relevant text (the Twelfth Amendment):

[T]hey [the Electors in each state] shall sign and certify [the lists of persons receiving votes for President and Vice President], and transmit [the lists] sealed to the seat of Government of the United States, directed to the President of the Senate [i.e., the Vice President]; -- The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted; ...

If the Amendment's drafters wanted to give the Vice President counting authority, they could easily have written "... and he shall then count the votes."  Using the passive voice ("and the votes shall then be counted") deliberately fails to specify who counts the votes.

That does not mean the Constitution is ambiguous about whether the Vice President counts the votes, so that courts or other interpreters need to use extra-textual sources to resolve the ambiguity. Rather, the Constitution is clear that it does not specify who counts the votes, and thus leaves it to whatever entity has residual power in the area (here, the Senate and the House of Representatives) to resolve how the votes are counted.


Insurrection and Disqualification from Serving in Government
Andrew Hyman

Section three of the Fourteenth Amendment disqualifies insurrectionists from holding various positions in state and federal government, unless Congress decides by supermajority to let them serve.  Last month on this blog, we discussed the 1872 Amnesty Act, and whether it waived the disqualification only retrospectively, or prospectively too.  My view remains that the 1872 Act only provided amnesty retrospectively, and thus disqualification under section 3 of the Fourteenth Amendment remains a live possibility.  Indeed, there is currently litigation involving alleged insurrection and disqualification in at least two cases according to CNN.

This raises the question whether a state court can lawfully use a civil proceeding to disqualify and/or remove a person from federal office or from the ballot, as a substitute for holding a full criminal trial with its broader legal protections for alleged insurrectionists.  When Congress passed the Enforcement Act of 1870, section 14 of that Act did provide a civil mechanism for ejecting insurrectionists from state or federal office, called the writ of quo warranto.  This 1870 Act did not apply to members of Congress or state legislators, but even if it had, these provisions were repealed by Congress in 1948, according to a recent law review article by Myles Lynch (n. 365).  It therefore seems unlikely that federal law currently authorizes states to remove or disqualify federal officials using a method that Congress decided in 1948 is inappropriate for federal prosecutors to use.

Even as Congress put the brakes on civil disqualification in 1948, it revised and perpetuated criminal disqualification.  Sections two and three of the Confiscation Act of 1862, as amended in 1948, today still exist as 18 U.S.C. 2383.  In emergency conditions, perhaps Congress will again authorize the quo warranto procedure, but for now Congress rejects that procedure.  Congress has power under section five of the Fourteenth Amendment to enforce the Amendment, and that probably includes some power to determine types of enforcement that are inappropriate.  At the very least, a state court wishing to go against congressional policy in this regard ought to have very clear and specific authority under state law to do so.

As mentioned, even the 1870 Act rejected the quo warranto procedure for evicting insurrectionist legislators (both state and federal).  Daniel Hemel observes that "The exception likely derives from the fact that state legislatures—like the houses of Congress—have their own exclusion and expulsion procedures on which the drafters of the ... Act chose not to tread." That seems like a reasonable inference, and would again counsel against enforcing the Fourteenth Amendment by using quo warranto against state or federal legislators.


Eric Segall on John McGinnis on Judge Jackson and Originalism [updated]
Michael Ramsey

At Dorf on law, Eric Segall: Of Judge Jackson, Originalism, and a Tale of Three Scholars.  From the introduction:

During her confirmation hearing, Judge Kentaji Brown Jackson seemed to self-identify as an originalist. She said the following: “The adherence to text is a constraint on my authority. I’m trying to figure out what those words mean, as they were intended by the people who wrote them.”

These comments, of course, were met with delight across the vast Federalist Society landscape and with despair among non-originalists of all stripes. The two best examples are a pair of essays by, on one hand, Professor John McGinnis, and on the other, Conor Casey and Adrian Vermule. Make no mistake, Casey and Vermule have the better of the argument by far.

Let's start with McGinnis. He delighted in Jackson's words, arguing that her testimony further entrenched originalism in our legal and political culture. ...


McGinnis observed that Democratic senators did not push back strongly on Judge Jackson's statements (mostly for political reasons) and concluded that "beneath the din of partisanship, the Jackson confirmation hearings show that originalism is becoming our law, even if its contours remain up for debate."

Casey and Vermeule had almost the opposite different reaction to the hearing. ...

Casey and Vermeule began by noting "if this is a victory for originalism, it is a Pyrrhic victory of epic proportions." They then summarized the problem as follows:

If and when most judicial nominees, liberal and conservative, Democratic and Republican, assent to some form of originalism, it will come at a steep price for originalists: Their method will be shown to do nothing at all, save, perhaps, providing a jargon in which to rationalize decisions reached on other grounds. It will become clear — even as the justices resolutely deny it — that all the real work, in hard cases of constitutional interpretation, is done by implicit or explicit commitments of political morality. Moreover, the Pyrrhic victory for originalism will be a defeat for the nation at large, diminishing transparency about the real grounds of judicial decisions and exacerbating cynicism about constitutional law.

Casey and Vermule are exactly right on all points. First, originalism, like all or almost all theoretical pre-commitments by the Justices, does almost no work in most constitutional law cases that get to the Court. Second, the "real work" of the Justices in cases involving "constitutional interpretation" involves applying their values, politics, and life experiences to the hard issues the Court has to resolve, not historical or textual analysis. Third, because the Justices talk the talk of text and history, however, instead of being open about what really drives their decisions, Casey and Vermule are spot on that as greater numbers of judges and academics pay lip service to originalism, we lose more and more transparency about the "real grounds of judicial decisions."

UPDATE:  In The Hill, a related essay from Andrew Koppelman (Northwestern): Ketanji Brown Jackson’s originalism.  From the introduction:

Constitutional originalists have been doing a victory lap after Ketanji Brown Jackson declared, in her confirmation hearing, “I believe that the Constitution is fixed in its meaning. I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” This, Georgetown Prof. Randy Barnett declared, “legitimates originalism. . . . she has affirmed that it is the norm.”

Other commentators more soberly noted that originalism now takes so many different forms that it no longer means much. It certainly does not entail the conservative political implications that the early proponents of originalism, such as Edwin Meese and Robert Bork, hoped for. Jackson was signaling to her new colleagues that she speaks the same language as they, but that doesn’t limit what she will say. You can say almost anything in original-speak.

Originalism has three central problems. It doesn’t really constrain judges. Even if it did, it would do so randomly and chaotically. But in fact, as it has been deployed in the Supreme Court, it is a fraud: The self-styled originalists don’t really care about historical evidence. They manipulate it to reach the results they find politically congenial, and then parade their virtue by saying they are merely following the law.

This essay, like others in a similar vein, seems to suffer from inconsistent claims: either (a) original meaning is indeterminate and so isn't useful as a way of constraining judges, or (b) purportedly originalist judges are frauds in that they ignore the best historical evidence to follow their political preferences.  These are both potentially powerful critiques but they're inconsistent so the critic needs to pick one or the other.  (Lawyers can argue in the alternative but scholars shouldn't.)

As to (a), I think it may be true as to some clauses and some applications, but it's not generally true; there are many constitutional points on which the original meaning is reasonably clear, especially once one recognizes that originalism doesn't require that there be no possible contrary argument, but only that one should pick the most plausible original meaning.  As to (b), I think this point is basically irrelevant to the question of whether originalism is the right approach.  If judges aren't doing originalism right, the response should be to criticize them on that ground.  Also, (b) seems a very strong claim ("fraud"!) that should have very substantial evidence to back it up, but the essay's only evidence is that Justice Alito has a different view of the original meaning of the free exercise clause from the author. (Apparently the original meaning of the free exercise clause is, in Professor Koppelman's view, so clear that disagreement with him amounts to "fraud," notwithstanding his earlier claim that original meaning is indeterminate.)

FURTHER UPDATE:  Eric Segall has an additional related post: Recency Bias and the Supreme Court as a Broken Institution. From the introduction:

The reality is that the times we live in are not unusual when it comes to controversies surrounding the Court. Recency bias has played a large role in the thinking of Court watchers that we are in more difficult times than ever when it comes to the Justices' decisions. But the truth is that the Court has been broken for well over 150 years. The Court needs to be fixed not because it is too conservative or at times too liberal but because we should not allow unelected, life-tenured judges to play such a large role in our country's politics. And that problem is anything but new both in terms of degree and kind.

Unlike his prior post, I mostly agree with this one.  The Court has often, wrongly, acted as a political institution.  But unlike Professor Segall, I see originalism as part of the solution.  If the Court would apply the Constitution's text, and refrain from decisions based on policy preferences, that would be be a substantial step in the right direction.