The UVA 2021 Originalist Symposium

The UVA Federalist Society Chapter has put together a stellar lineup

On Friday, the University of Virginia Federalist Society Chapter will hold its 2021 Originalist Symposium. I spoke at this conference last year–it was one of my final trips out of town before the lockdown. This year, the students have upped the ante, and put together a stellar lineup. You can register today to attend virtually.

I will be speaking on the first panel about Bostock.

Textualism After Bostock

Bostock v. Clayton County was a landmark decision in more ways than one. Of course, the holding was groundbreaking. But so too was the fact that all three Bostock opinions rooted themselves in textualist principles. How much does the Bostock split matter? Should we expect more or fewer divisions like those in Bostock? And how will the Court's changes in personnel affect this divide?

Prof. Josh Blackman
South Texas College of Law
Prof. Tara Leigh Grove
University of Alabama School of Law
Prof. Michael Rappaport
University of San Diego School of Law

The second panel will track the growing discontent for originalism within the conservative legal movement.

Originalism's Conservative Foes

The conservative legal movement has championed originalism for decades. But there are growing signs of dissension — some argue that originalism has outlived its utility and should be abandoned. How should originalists respond to these challenges from the right?

Josh Hammer
Opinion Editor, Newsweek
Prof. Stephen Sachs
Duke University School of Law
Prof. John Yoo
UC Berkeley School of Law
The Honorable Gregory Maggs
Judge, United States Court of Appeals for the Armed Forces (moderator)

The third panel looks at the (gasp) Thomas Court:

Originalism, Institutionalism, and the Thomas Court

With the Court's conservative wing ascendent, what should originalists expect in the coming years? Will one or more justices try to position themselves as the intellectual heir to Justice Scalia, or will different justices establish their own brands of originalism? What comes next in the judicial wars, and how will President Biden shape the judiciary?

John Malcolm
Director, Meese Center for Legal and Judicial Studies, The Heritage Foundation
Prof. Jennifer Mascott
Antonin Scalia Law School
The Honorable Beth A. Williams
Former Assistant Attorney General, US Department of Justice
The Honorable Neomi Rao
Circuit Judge, United States Court of Appeals for the District of Columbia Circuit (moderator)

The closing panel looks at public perceptions of originalism:

Originalism's Public Meaning

Supreme Court confirmation hearings tend to shine a bright spotlight on originalism. During Justice Barrett's hearings, many prominent figures — from politicians to Hollywood celebrities — opined on the nature and merits of originalism. But how does the general public view originalism? And how much should originalists be concerned with the public's conception of what originalism is?

Elizabeth Slattery
Senior Legal Fellow, Pacific Legal Foundation
Prof. Kurt Lash
University of Richmond School of Law
David Lat
Founding Editor, Above the Law
Evan Bernick
Visiting Professor of Law, Georgetown University Law Center (moderator)

Comments

[Rev. Arthur L. Kirkland]

Originalism — still younger than, less popular than, less persuasive than, and less important than Kim Kardashian.

Carry on, clingers. So far as your betters permit, that is.

[MoreCurious]

John Yoo? Will he be holding a how-to torture seminar?

[bernard11]

It is fairly astonishing that he would be invited to speak anywhere.

[Dr. Ed 2]

I was involved in hosting Ollie North in March of 2000.

His message included the importance of voting that fall, because the Presidential election would be closer than people thought it would be…

[Dr. Ed 2]

My point being that people like this often have things to say worth hearing, they rarely exist in the monochrome that their critics paint them.

And as to Yoo’s claim that the President could order the “massacre of an entire village”, what do you think it was that FDR did to the German arts city of Dresden?

[Brett Bellmore]

I’m kind of surprised that Yoo is regarded as controversial after some of the stunts Obama got away with.

[bernard11]

That’s hardly the limit of Yoo’s awfulness, but never mind.

[M L]

He was invited to speak on the Daily Show with Jon Stewart….

Based on watching that interview, I concluded that all this hyped outrage about him, such as you are expressing now, must be manufactured nonsense.

[Rev. Arthur L. Kirkland]

Sure — if you ignore the crushed testicles of an innocent child, the repetitive torture, the brutish authoritarianism, the obsequiousness, the breach of his duties as a lawyer and a person . . . he’s a swell guy!

Don’t change, clingers.

It’s more fun this way.

[bernard11]

some argue that originalism has outlived its utility and should be abandoned.

Huh?

And here I thought it was a matter of principle, not utility. So there are originalists prepared to abandon the idea if the results are not to their liking.

I can’t say I’m surprised.

[Brett Bellmore]

Well, it is a matter of principle, but at some point you realize the cause is lost, and start to question whether the principle is worth losing all the real world fights.

It’s not so much a concern that originalism leads to results we don’t like, as a concern that it will only be permitted to prevail where it leads to results we don’t like, because our foes don’t object to THOSE victories. Whenever it produces a result we do like, living constitutionalism will be foisted on us.

[bernard11]

Amazing, and incoherent.

Are you really claiming that there have been no decisions by the Court that are originalist, that liberals don’t like, and that stand?

As usual, your side’s misconduct is the other side’s fault.

[David Nieporent]

Well, it is a matter of principle, but at some point you realize the cause is lost, and start to question whether the principle is worth losing all the real world fights.

I don’t think you understand the concept of a principle.

[M L]

It is somewhat of a farce to pretend that our government is bound by the Constitution. The Constitution as interpreted and applied by courts bears little resemblance to its original meaning.

Originalism is the principle that the meaning of the Constitution does not change until it is properly changed by amendment. Stick to this principle all day long, but also recognize the reality that you lost. This principle hasn’t carried the day, nor the century.

[David Nieporent]

I’ll mark you down on the “What is a principle?” side of the ledger with Brett.

One does not hold a principle because it’s convenient, or because it improves one’s chances at victory, or because other people hold it. All of those things are their own justification. One holds a principle because it’s right, regardless of the consequences.

[Sarcastr0]

You’ve thrown away your principles because your worldview is shared only by very few, even on the right.

[Rev. Arthur L. Kirkland]

Disaffected, grievance-consumed, whining clingers are among my favorite culture war casualties.

[Lawman45]

THIS is the principle that most Americans believe applies. They, as the Framers, see the Bill of Rights as a restriction on government first and foremost. They also see it as a CONTRACT between the People and their Government not subject to one-sided renegotiation and application.

Surprisingly, they do not believe in “reading the minds” of the Framers but, in my 50 years of experience (only mentioned to show I have received a LOT of input ), Americans seem to take like fish to water to a version quite close to Randy Barnett’s Original Public Meaning originalism. When you describe it, the usual answer is “I like that”.

They see, and want to see, the Constitution as more than judicial Silly Putty.

[Dr. Ed 2]

Wasn’t Neomi Rao on someone’s short list?

[BMS]

What time is the breakout about anti-originalist arguments against impeachment and disqualification of former officers?