The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
University of Chicago law professor Eric Posner argues that "Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career." He elaborates:
It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vison of the aristocratic founders with democracy, and accusing the liberal justices-who emerged from and hobnobbed with the same exclusive circle of establishment types as he did-of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump's appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush-"we'll appoint better justices"-no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.
I don't find this argument at all persuasive, but I do think Posner has a point about the political failure (thus far) of originalism:
It turned out that there was no mainstream political support for originalism-in a substantive as opposed to merely rhetorical sense…. The major cause of the failure of originalism was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist-Scalia himself. His other two appointments-Kennedy and O'Connor-were not originalists. Over the years, presidents-whether Democrats or Republicans-failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism's doom were the appointments of Alito and Roberts by George Bush-solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court.
Modern conservative originalism was initially a tool adopted in the Nixon era by conservatives to oppose Warren and Burger Court judicial activism. It wasn't a serious intellectual movement at the time, and if it had been, there wasn't anything approaching sufficient historical scholarship to support it. Conservatives (and libertarians and more recently liberals) started taking originalism seriously, and engaging in serious supportive scholarship (though still wildly insufficient to the enormity of the task), in the late Reagan years. But George W. Bush was interested in appointing judges who would uphold his administration's broad exercise of the president's wartime powers, not judges who would judge that power against original meaning.
More generally, originalism faces a significant difficulty in becoming the governing ideology of the Supreme Court, regardless of the ideological sympathies of the justices. Modern "original public meaning" originalism faces the problem that it's almost entirely novel to American jurisprudence, which means that we have more than 200 years of precedent based on what modern originalists deem to be illegitimate non-originalism. It's not politically or practically feasible to start from scratch (imagine the panic in world markets if the court ruled the Federal Reserve unconstitutional), and if the court applies originalism only selectively, or only to new issues not addressed previously, it raises the serious question as to whether it's coherent to have a body of constitutional which is only partially based on originalism.