Sherif Girgis: Originalism's Age of Ironies
Michael Ramsey
Sherif Girgis (Notre Dame Law School) has posted Originalism's Age of Ironies (138 Harv. L. Rev. F. (forthcoming 2024)) (20 pages) on SSRN. Here is the abstract:
Guns, abortion, religious establishments, Presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices joined the fray. A close look at their dueling opinions reveals the divergent paths that originalists take when the method is pressed to its limits. It turns out that the purer one’s originalism at the level of theory, the less it constrains judges in practice. That is especially true for cases applying open-ended liberties like free speech and gun rights, where there are systematic reasons to expect balancing over time to be inevitable.
The resulting dilemma — that stringency about originalist theory might reduce restraint in adjudication — reflects an irony for a modern movement born to rein in judges. Still, irony is not incoherence or even error. The developments discussed here are predictable results of a legal theory’s transition to governing philosophy on an apex court. Not only are broad rights and vague texts likelier to drive cases before a Court that resolves circuit splits; now that the Court identifies as originalist, it’s likelier to get cases that are close according to originalism. If the Priest-Klein hypothesis is right to predict a trend toward 50% plaintiff victories in litigated cases, perhaps by extension an originalist Supreme Court will see more cases where originalism isn’t conclusive. This is not to say original meaning does no work at the Court. The Court may even be advancing originalism by cases that never reach it because their originalist resolution would be predictable and expected. A method’s value isn’t exhausted by its footprint in the U.S. Reports. But the reach for non-textual criteria is no surprise.
Nor is it a betrayal of originalism as the theory has developed under decades of intellectual pressure. Modern academic originalism is not just a theory of adjudication (much less Supreme Court adjudication), not just a means of tying judges’ hands, but a theory of our higher law’s content. The law created by adoption of a text depends on interpretive conventions at the time. So among scholars, originalism has of its own accord become attuned to non-textual criteria — constitutional “backdrops,” general law, customary norms of interpretation, constitutional “construction” — that both traditionalism and judicially developed doctrines may reflect efforts (sometimes fumbling efforts) to capture. The practical pressures of governance are causing “chambers” originalism to converge on the direction taken by the academic variety. The method so developed may prove less simple, less peremptory, less useful in polemic against rivals than Judge Bork’s, but not for all that less principled.
Via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!"