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Has Scalia’s “Originalism” Been Particularly Important?



To follow up on my previous post, Eric Posner effectively explains that the answer is “no”:

Only Justice Clarence Thomas, who has become increasingly isolated, has tried to use originalism in a consistent way. The three other Republican-appointed justices—Roberts, Kennedy, and Samuel Alito—are not originalists, nor are the four justices appointed by Democratic presidents. These justices decide cases the way justices always have: by using whatever materials at hand—historical sources, yes, but also (and mainly) judicial precedents, common sense, general principles, political values, and so on—to generate outcomes that pretty reliably track their ideological priors.


This is why originalism has no staying power except as a slogan. When Sen. Ted Cruz says that he will appoint an originalist if he wins the presidency, he means that he would appoint a justice who will vote to overturn Roe v. Wade and strike down economic regulation like Obamacare.

According to John Dean, William Rehnquist once said that a “strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs.” Originalism, for all intents in purposes, is just the new strict constructionism in this sense.

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