My Georgetown Law colleagues Kevin Tobia, Neel U. Sukhatme, and Victoria Nourse have posted Is Originalism Orthodoxy?
The modern Supreme Court has vocally embraced originalism in controversial cases from religion to abortion to guns. Scholars from right and left now urge that it is critical to understand precisely what the Court’s originalism is. Legal academics have debated theoretical variations of originalism for decades, but assessing its descriptive status (what it is) raises newly urgent questions about Supreme Court practice. Is originalism “our law,” as proponents claim? If so, what exactly is that originalism? Has it always been our law? Justice Scalia once explained that: “not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist.” Critics, however, claim that the Supreme Court’s originalism is new, and even a kind of “living constitutionalism.”--Dan Ernst
This Article is the first to evaluate these claims using data, including the text of 27,767 cases reaching back to the Founding. We build a unique database constituting over 200,000 source documents and, using Python, search for hundreds of original sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice did not exist as often as originalists might predict—raising questions about originalism’s past orthodoxy and universality. The data show that originalist practice grows in the Rehnquist Court (the late 20th century), but even today the Court’s practice is not consistently originalist. This calls into question strong empirical, and positivist, claims about originalism’s constancy or “orthodoxy.” And it lends important empirical support to originalist critics who see the Court’s method as new, selective, and disruptive. Finally, it raises new questions about whether originalism is compulsory for modern judges as “our law,” as some originalists today claim.
