Four conservative legal thinkers have written a jurisprudential manifesto in favor of “A Better Originalism,” by which they mean an originalism that accepts that the proper enterprise of judging includes taking account of moral truths. They set themselves against what they call the “morally neutered, overtly positivist approach to reading legal texts” that Justice Neil Gorsuch showed in Bostock, in which he wrote the majority opinion holding that the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation or transgender status.
But their argument is, at least implicitly, not just against the six justices in the majority in that case. It’s also, and more immediately, against the dissenters. Justices Thomas, Alito, and Kavanaugh wrote that the majority was improperly applying originalism in the case, and that a proper application would yield the opposite decision. If their argument was sound, then we don’t need a new kind of originalism as much as we just need two more justices like those three. What I’d like this quartet to address, separately or together, is what they think those dissenting justices should have said that they didn’t, and why it would have been better than what they did say.