One of my favorite takes on originalism is in the Crooked Timber blog post by philosophy professor, John Holbo, which I've linked to at the end of this comment.
One of the points he makes is that originalism "is basically fusionist glue in hermeneutic form," binding the "moral traditionalist" and "libertarian" branches of the conservative coalition together. This allows them to present a united front and work together on their appointments. It also stacks the odds in their favor because these so-called originalist judges then make decisions that nearly always result in a favorable policy outcome for one of the two branches of the coalition while giving the supporters of the other branch plausible deniability since they're able to claim it as a "loss" for their side.
Everybody involved can then hold these decisions up as examples of originalist judges ruling "impartially" against their own (or at least their perceived) personal policy preferences. Though it's not an especially high bar to pass, and I still might disagree with almost all of his rulings, I have (slightly) more respect for Scalia than I do for Alito, specifically in regards to both his partisanship and his integrity. Nevertheless, I can't help but view the "hard fact" to which he had resigned himself about having to make decisions he disagreed with through this lens.
Of course, like Holbo, I'm not an attorney. Unlike Holbo, I don't even have a doctorate in philosophy (though I do hope to eventually earn one studying information science as it relates to law and politics). I do spend a ton of time reading legal rulings for a layperson, though, certainly enough to know that when Scalia (or those heavily influenced by his strain of originalism) describe a "judicial conservative" as "a judge who does not advance any political or policy preferences, but whose approach to constitutional and statutory interpretation involves fidelity to the text of the Constitution and adherence to the original understanding of that document or to the intent of its drafters" that it is pure jiggery-pokery.
Holbo’s observation that originalism functions as a “fusionist glue” neatly captures why the Court can simultaneously advance moral traditionalist agendas while preserving libertarian credibility, a duality that becomes especially evident when judges craft rulings that satisfy one wing without alienating the other. This strategic alignment is reflected in the pattern of https://piercecountycourts.org where case outcomes often reveal an underlying calculus rather than pure doctrinal fidelity. Recognizing this helps explain the apparent willingness to engage in activist jurisprudence, even as the coalition publicly decries it.
Your distillation of John Holbo’s claim that originalism serves as a “fusionist glue” uniting moral traditionalists and libertarians pinpoints the ideological engine behind recent rulings. The way recent https://summitcountycourts.org echo this glue shows how the Court translates coalition chemistry into predictable outcomes. It streamlines appointments while giving the opposing wing plausible deniability, letting them cast unfavorable rulings as isolated losses rather than doctrinal setbacks.
Holbo’s observation that originalism functions as ‘fusionist glue’ binding moral traditionalists and libertarians captures the subtle chemistry driving the Court’s recent activist rulings, and it echoes the way coalition dynamics shape judicial appointments https://brevardcountycourts.org illustrate how procedural transparency can expose the underlying strategic alignments without compromising judicial legitimacy. This synergy lets originalist judges produce outcomes that satisfy one faction while the other claims a procedural loss, preserving plausible deniability and reinforcing the unified front.
Your citation of Scalia’s warning that judges must accept outcomes they dislike captures the core tension behind today’s 6‑3 conservative majority, especially as the Court wrestles with the fallout from Trump’s barrage of roughly ninety lawsuits. In practice, even the https://cobbcountycourts.org illustrate how lower courts struggle to maintain impartiality when high‑profile political battles filter down, echoing the Supreme Court’s current credibility crisis. Restoring a principled, originalist approach could therefore be the only path to rebuilding the public’s eroded trust.
I disagree that clear constitutional text should always be controlling. After all, if the original US Constitution (the 1787 text) would have, purely hypothetically, said that US states are allowed to segregate their schools by race and to have anti-miscegenation laws, I think that it would be entirely reasonable for the vague text of the 14th Amendment to overrule this earlier, more explicit US constitutional text even if the 14th Amendment wasn't originally intended or originally understood to do this. Similarly, a hypothetical constitution that contained explicit language limiting marriage to one man and one woman and also a later Equal Rights Amendment should be fair game for interpreting this vaguer, later ERA as implicitly repealing the earlier, more specific constitutional language about limiting marriage to one man and one woman, regardless of this ERA's original intent or original understanding.
I do agree with the general points of your article, though.
Good essay, but I'm unconvinced about the superiority of the lefty approach to interpreting the Constitution. It can also lead to tendentious decisions that contradict the plain language of the document. See Gonzales v. Raich.
One of my favorite takes on originalism is in the Crooked Timber blog post by philosophy professor, John Holbo, which I've linked to at the end of this comment.
One of the points he makes is that originalism "is basically fusionist glue in hermeneutic form," binding the "moral traditionalist" and "libertarian" branches of the conservative coalition together. This allows them to present a united front and work together on their appointments. It also stacks the odds in their favor because these so-called originalist judges then make decisions that nearly always result in a favorable policy outcome for one of the two branches of the coalition while giving the supporters of the other branch plausible deniability since they're able to claim it as a "loss" for their side.
Everybody involved can then hold these decisions up as examples of originalist judges ruling "impartially" against their own (or at least their perceived) personal policy preferences. Though it's not an especially high bar to pass, and I still might disagree with almost all of his rulings, I have (slightly) more respect for Scalia than I do for Alito, specifically in regards to both his partisanship and his integrity. Nevertheless, I can't help but view the "hard fact" to which he had resigned himself about having to make decisions he disagreed with through this lens.
Of course, like Holbo, I'm not an attorney. Unlike Holbo, I don't even have a doctorate in philosophy (though I do hope to eventually earn one studying information science as it relates to law and politics). I do spend a ton of time reading legal rulings for a layperson, though, certainly enough to know that when Scalia (or those heavily influenced by his strain of originalism) describe a "judicial conservative" as "a judge who does not advance any political or policy preferences, but whose approach to constitutional and statutory interpretation involves fidelity to the text of the Constitution and adherence to the original understanding of that document or to the intent of its drafters" that it is pure jiggery-pokery.
https://crookedtimber.org/2024/05/12/originalism-for-realists-two-obvious-thoughts/
How do you suppose these judges feel to be viewed as liars and cheaters after all? Do they even care?
Holbo’s observation that originalism functions as a “fusionist glue” neatly captures why the Court can simultaneously advance moral traditionalist agendas while preserving libertarian credibility, a duality that becomes especially evident when judges craft rulings that satisfy one wing without alienating the other. This strategic alignment is reflected in the pattern of https://piercecountycourts.org where case outcomes often reveal an underlying calculus rather than pure doctrinal fidelity. Recognizing this helps explain the apparent willingness to engage in activist jurisprudence, even as the coalition publicly decries it.
Your distillation of John Holbo’s claim that originalism serves as a “fusionist glue” uniting moral traditionalists and libertarians pinpoints the ideological engine behind recent rulings. The way recent https://summitcountycourts.org echo this glue shows how the Court translates coalition chemistry into predictable outcomes. It streamlines appointments while giving the opposing wing plausible deniability, letting them cast unfavorable rulings as isolated losses rather than doctrinal setbacks.
Holbo’s observation that originalism functions as ‘fusionist glue’ binding moral traditionalists and libertarians captures the subtle chemistry driving the Court’s recent activist rulings, and it echoes the way coalition dynamics shape judicial appointments https://brevardcountycourts.org illustrate how procedural transparency can expose the underlying strategic alignments without compromising judicial legitimacy. This synergy lets originalist judges produce outcomes that satisfy one faction while the other claims a procedural loss, preserving plausible deniability and reinforcing the unified front.
Your citation of Scalia’s warning that judges must accept outcomes they dislike captures the core tension behind today’s 6‑3 conservative majority, especially as the Court wrestles with the fallout from Trump’s barrage of roughly ninety lawsuits. In practice, even the https://cobbcountycourts.org illustrate how lower courts struggle to maintain impartiality when high‑profile political battles filter down, echoing the Supreme Court’s current credibility crisis. Restoring a principled, originalist approach could therefore be the only path to rebuilding the public’s eroded trust.
I disagree that clear constitutional text should always be controlling. After all, if the original US Constitution (the 1787 text) would have, purely hypothetically, said that US states are allowed to segregate their schools by race and to have anti-miscegenation laws, I think that it would be entirely reasonable for the vague text of the 14th Amendment to overrule this earlier, more explicit US constitutional text even if the 14th Amendment wasn't originally intended or originally understood to do this. Similarly, a hypothetical constitution that contained explicit language limiting marriage to one man and one woman and also a later Equal Rights Amendment should be fair game for interpreting this vaguer, later ERA as implicitly repealing the earlier, more specific constitutional language about limiting marriage to one man and one woman, regardless of this ERA's original intent or original understanding.
I do agree with the general points of your article, though.
Good essay, but I'm unconvinced about the superiority of the lefty approach to interpreting the Constitution. It can also lead to tendentious decisions that contradict the plain language of the document. See Gonzales v. Raich.
Bolling v. Sharpe was also a bit difficult to justify.
I think you mean "the power isn’t unchecked" or "the power is checked" where you say "...the power isn’t checked".