The Corner

Law & the Courts

Originalism Means Doing the Work

I agree with Charlie that one of the accomplishments of originalists has been to greatly increase the analytical rigor of the Supreme Court and the quality of its work product. Even when the Court gets things wrong, the discipline of having to justify them in originalist and textualist language is the tribute vice pays to virtue. Indeed, as any good cultural conservative will tell you, part of the point of having virtues is not that everybody follows them but that the habit of acting virtuous tends to make you more virtuous in stages. Over time, we become what we pretend to be. And if you have spent much time reading Supreme Court decisions from the 1960s and 1970s, you can instantly spot the difference. To pick one example, there was a very big shift at the end of the 1970s when the Court stopped just assuming that anybody could file lawsuits under any federal statute regardless of whether Congress actually created a right to file a lawsuit under the statute. That was an enormous sea change. You cite any case before then on this topic, and courts today just respond, “Well, those were the bad old days.” Back then, all it took to create a new federal cause of action was Justice Douglas, a bottle of bourbon, an afternoon, and a few paragraphs. Even when originalists and textualists don’t get our way on everything, we can still see the benefits to the Court’s decision-making process from the challenge of intellectual rigor.

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