How the Roberts Court Killed Originalism

Although there are at least five justices who identify as originalists on the Roberts Court, none of them exercise judicial review in an originalist manner, and the Roberts Court as an institution is no less or more originalist than previous Supreme Courts. The important difference between the Roberts Court and previous Supreme Courts is that the current justices claim to be guided by originalism, but decide cases by using a living constitutionalist, pluralistic model of judicial review. The current chaos plaguing constitutional law and constitutional theory flows directly from this disconnect between the justices saying publicly that they are employing originalism but then flouting the doctrine in case after case. This article argues that the Roberts Court’s disregard and distortion of originalism has effectively killed the doctrine as a serious theory of constitutional interpretation.

The way forward is to recognize, as the original Originalists did in the 1970s, that for originalism to be coherent it must come with strong deference to more accountable political actors than life-tenured judges. Only by restoring the deference element in originalism to its proper place, can originalism be rebirthed into a useful and helpful tool for judges deciding constitutional law cases.