More on Dobbs, Originalism, and Conservative Legal Thought

An observation.

I was very interested in the posts by Josh Blackman and Stephen Sachs about possible outcomes in Dobbs and what they might say about originalism and/or the conservative legal movement.  I wanted to add an observation about Josh's post, too.

If Josh's observations about current attitudes are right, it's interesting to contrast perspectives now from perspectives just a few short years ago.  A few years ago, the prevailing narrative was that originalism was primarily a theory of what the right answer should be as a first principle -- recognized, at least in the past, as a separate question from what a Court should do when precedents on the books were different. As Marc DeGirolami put the point, originalism was understood as a theory of interpretation, while stare decisis was understood as a theory of adjudication.  Originalist theorists then pondered what the relationship between the two should be, without an obvious consensus view emerging.

If Josh's observations are accurate, that perspective has been dropped (at least among attendees he spoke with) in favor of a transactional view: The point was to get to a certain result, and the only question is whether the result will be achieved or if some  illegitimate barrier (the liberal media, etc.) might get in the way.  Perhaps this is the difference in perspective between academic theorists and the practitioners who most populate the national conference.  Or perhaps it's the difference between what gets said before the Court has new members that make a goal possible versus what gets said after that.  I don't know.  But it seems like a notable shift.

Comments

[Sarcastr0]

As I said after McGirt, the Federalist Society is going to have issues with the faction that demands results when they decide originalism now too slow and indirect.

[LawTalkingGuy]

McGirt freakout was a kind of stunning display of open bigotry that isn’t talked about enough.

Ted Cruz actually tweeted this: “ Neil Gorsuch & the four liberal Justices just gave away half of Oklahoma, literally. Manhattan is next.” As if native tribes are aliens or enemies that aren’t part of the American body politic too.

[Brett Bellmore]

McGirt was a perfectly legitimate ruling. The US made that treaty, it was ratified by the Senate. The Court basically said, "If you want to repudiate this treaty, get your own hands dirty, we're not doing it for you."

Good for them.

[LawTalkingGuy]

Agreed. And even if it was wrong, on interpretation or because the policy implications were difficult, there was no reason for the kind of freak out the right had. Nothing was “given away.” A court said one American governmental body actually had more responsibilities over an area according to the law. Nothing insane happened, nothing that couldn’t be legislatively fixed or negotiated around by relevant parties if there were some problematic issues with the implementing the decision. Anyone viewing McGirt as an affront to the whole conservative legal project was very telling. Even more than Bostock.

Progressives and liberals couldn’t have asked for a better example of pure reactionary bigotry than that Ted Cruz tweet.

[Noscitur a sociis]

I don't think there's any serious question that McGirt has had some severely negative effects. They're largely confined to Oklahoma, of course, so most of the country doesn't have to think about them much. And the prospective problems could be fixed by Congress pretty easily (though there doesn't seem to be much interest in doing so, as far as I can tell). But not all of the problems can be fixed legislatively, and they're real.

If you're from the Will Baude-style caelum ruat school, then none of that should matter. But if you're one of the people who mocks that position for being unrealistic and who thinks that judges should have discretion to craft decisions that do the "right" thing rather than ones that hurt people, then it seems like fair game to criticize the outcome.

[MatthewSlyfield]

I wonder if it could be argued that all treaties with the tribes were necessarily voided/repudiated when Congress made all Native Americans US Citizens in 1924.

The US government can not legitimately have treaties with it's own citizens.

Was this aspect argued in McGirt or did they just rely on the treaty having been ignored for a really long time?

[Brett Bellmore]

I think that may be the only argument that the state didn't throw at the proverbial wall.

[Bob from Ohio]

"Good for them."

You don't live in Oklahoma, nor do the justices. They and you don't have to live with the consequences.

[Brett Bellmore]

No, that's true, but has nothing to do with whether the Supreme court should uphold treaties.

[LawTalkingGuy]

None of the justices are minor rape victims who could be forced to go through the trauma and danger of childbirth, but you’d be perfectly happy to say that those consequences can be ignored by them and they should allow that to happen.

[bevis the lumberjack]

Bob, I had ancestors in that part of the world that were affected by the government’s fuckery. (Note to Liz - actually proven by research).

When you say “consequences” you’re referring to the consequences of this decision, but who should deal wilt the consequences of the government’s abuses?

[Bob from Ohio]

"government’s abuses"

Criminals being convicted for crimes in state court are not abuses.

[Brett Bellmore]

"A few years ago, the prevailing narrative was that originalism was primarily a theory of what the right answer should be as a first principle -- recognized, at least in the past, as a separate question from what a Court should do when precedents on the books were different."

Yeah, that's exactly the problem. Too many modern 'originalists' think that figuring out what's right, and figuring out what you should do, are separate questions.

But if figuring out what's right doesn't mean you'll actually do it, why the hell should we care if you're 'right'?

[Krychek_2]

There's a big difference between what the answer should be on a clean slate versus what the answer should be given that overruling a precedent will cause serious disruption. If, for example, the Court decided to overrule Obergefell, there are a whole lot of gay couples who have relied on Obergefell whose lives would then be thrown into uncertainty and chaos.

And in response to Cal's quotation from Jonathan Swift immediately below, a lawyer's job is to make predictions, as in, If you take Action X, Legal Consequence Y will follow. I can only do that if precedent means something. Even if it's a precedent that I personally would like to be rid of.

I'm not saying precedent should never be overruled; just that a majority of the current court doesn't like it isn't enough of a reason.

[Michael P]

So how should a court remedy erroneous precedents? Or should it not? People have relied on a lot of bad court decisions in the past.

[LawTalkingGuy]

They have a framework for evaluating when it is appropriate to do so.

[Lee Moore]

Describe the framework.

I seem to recall that the Judiciary Committee traditionally fails to get the nominess past the hand waving stage on this point.

[Bob from Ohio]

"Describe the framework."

Liberal decisions are never reversed.

[Krychek_2]

That's not the actual rule, even though it would be a good one.

[Bob from Ohio]

Its the de facto rule.

[LawTalkingGuy]

Wayfair v South Dakota has a good exploration of the topic.

[Lee Moore]

A Kennedy opinion can hardly be described as a "framework", even for making spaghetti. However the syllabus says :

Stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power. If it becomes apparent that the Court’s Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers, the Court should be vigilant in correcting the error. It is inconsistent with this Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation.

Which seems to be quite right. The framework is that you can use stare decisis, so long as it's not wrong. But if it is, you ditch it.

And since it was Roberts, urging stare decisis uber alles, who lost, I presume that the current stare decisis on stare decisis is that it counts for squat against a clear past error.

Only kidding - I know that the stare decisis of stare decisis follows the "spaghetti framework" - it falls and coils where it falls and coils on the day.

[dwb68]

^ this. reliance interests are very important to practitioners.

[Brett Bellmore]

And nobody has any reliance interests in what the Constitution actually says?

The judicial oath doesn't speak of precedent or reliance interests, but only of the laws and the Constitution. How can you bear true faith and allegiance to a Constitution when you're going to act on an understanding of it you believe to be wrong?

[LawTalkingGuy]

Because we live in a common law system where it is and always has been the norm to rely on precedent even if an individual judge things it’s incorrect?

[Brett Bellmore]

"There's a big difference between what the answer should be on a clean slate versus what the answer should be given that overruling a precedent will cause serious disruption."

And that's exactly the claim that originalism started out rejecting.

Wrong rulings keep festering, distorting the law. Maintaining them requires more and more wrong rulings.

"I'm not saying precedent should never be overruled; just that a majority of the current court doesn't like it isn't enough of a reason."

And, that's exactly how a living constitutionalist would view the matter, and an originalist shouldn't. Because for living constitutionalists "don't like" and "wrong" are essentially interchangeable, but for originalists, they're totally orthogonal. They wouldn't be overturning the precedent when they "didn't like it", only when it was wrong.

[Sarcastr0]

You sound like the right wing thinks the Warren Court sound like.

Making the Constitution into a document that instantiates your understanding of right and wrong kind of ignores the point of having a constitution.

[Lee Moore]

That a little dishonest, even for you. Brett obviously means legally wrong according to an originalist interpretation, not morally or politically wrong according to Brett's preferences.

[bernard11]

But to Brett they are the same, even if he doesn't realize it.

[Michael P]

Wow, you went straight past the illusion of asymmetric insight to claiming you understand someone else's argument better than they themselves do.

[Brett Bellmore]

"Making the Constitution into a document that instantiates your understanding of right and wrong kind of ignores the point of having a constitution."

And again, you are relentless in refusing to distinguish between moral right and wrong, and interpretive right and wrong.

Some interpretations of the Constitution are simply wrong as a matter of the meaning of the words. Wrong in a 2+2=5 way, not a "punching random people" way.

[Krychek_2]

And originalism is wrong in a 2 + 2 = 5 way; see my comment to Lee below.

[Lee Moore]

I've seen it. You seem to be suffering from the delusion that originalism has something to do with "divining the framers intent."

It doesnt. It's simply textualism, with a tiebreaker, where current meaning has drifted away from original meaning.

[LawTalkingGuy]

Textualism is an intent based theory.

[Lee Moore]

It's English, Captain, but not as we know it :

Scalia : "[it] is the law that governs, not the intent of the lawgiver."

Oliver Wendell Holmes : "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."

[LawTalkingGuy]

Someone just read the Wikipedia article on textualism lol.

[M L]

LawTalkingGuy -

And someone else just made comments proving that he has no clue what he's talking about, yet he continually vomits up nonsense and invective that has yet to be worth reading or responding to.

[Lee Moore]

So Wikipedia's quotes on this are made up ?

[LawTalkingGuy]

M.L., I actually do know what I am talking about, and I take my cues from one of our foremost textualist scholars, John Manning:

"To be sure, textualists have sought to devise a constructive intent that satisfies the minimum conditions for meaningfully tracing statutory meaning to the legislative process. That much is uncontroversial. In any system predicated on legislative supremacy, a faithful agent will of course seek the legislature's intended meaning in some sense, and modern textualists do situate themselves in that tradition. But to say that they simply practice intentionalism by other means is to understate the important link for textualists between recognizing the cumbersome, chaotic, path-dependent, and opaque character of the legislative process and their rejection (in what may perhaps be overstated rhetoric) of the classical intentionalists' understanding of legislative intent." ARTICLE: TEXTUALISM AND LEGISLATIVE INTENT, 91 Va. L. Rev. 419, 423

"It will then argue that despite this skepticism, textualists necessarily believe in some version of legislative intent, but one that is quite different from the version associated with classical intentionalism. In particular, textualists focus on "objectified intent" - the import that a reasonable person conversant with applicable social and linguistic conventions would attach to the enacted words."

ARTICLE: TEXTUALISM AND LEGISLATIVE INTENT, 91 Va. L. Rev. 419, 424

As you can see, Manning states it is "uncontroversial" that in a system of "legislative supremacy" which we have, textualists desire to implement some intent of the legislature as a whole. But importantly, they reject the tools and framework of "classical intentionalism," relying only upon the text and their meaning as understood by a reasonable person as the only evidence of legislative intent. All other tools and methods, legislative history, diving statutory purpose, judicial judgment for what a legislature would have done in situations not addressed by the text are illegitimate because they are not the product of what the legislature actually did as a whole.

[LawTalkingGuy]

Not made up, just an incomplete explanation of textualism. Why do we care what the text of a statute is? Because that's what the legislature passed into law. The text came from the institution our body politic elected to make laws. Of course we care about their intent. How long did the legislature want a thief to spend in prison? Well we look at the text of the statute authorizing imprisonment for theft. That's where you find their intent, what they actually wanted to do. Nothing else: floor speeches, committee reports, the social or political historical context, the policy purpose of a statute, etc. matters to the textualist because those are poor or even misleading ways to figure out what a legislative body as a whole wanted to do when it passed a law. You can only rely upon the text itself according to them.

But we don't pretend that what they wanted to do doesn't matter at all. That's why many textualists, including Scalia, still believe in the absurdity doctrine and the scrivener's error doctrine. If a statute says that a misdemeanor theft is punishable by 30 days in "the local mail" we don't turn them over to the custody of the post-office.

[M L]

Textualism is a theory based on the meaning of the words. Often, there would be at least some kind of evidence regarding the intent of those who used the words at the time they used them. And this evidence would be highly probative of the meaning of the words at the time they were used. But ultimately intent is ancillary to the text and not even necessary at all in theory.

[LawTalkingGuy]

It absolutely is necessary to the theory. Again, the law as expressed in statutes comes from somewhere, that somewhere is the elected legislature. That legislature was elected to pass laws and implement policies. When you apply the text of a statute to a set of facts, or interpret the text when there is ambiguity, you are absolutely trying to figure out what the legislature intended to do when you're acting as a textualist.

Suppose you want to know whether a 1 year statute of limitations on medical claims applies to dental malpractice, when the statute only refers to "medical claims." Even focusing only on the text, you are trying to figure out if the legislature intended it to apply. Maybe they include "dental" in the definition of "medical claim" and it is easy. Maybe dental is not in the definition of "medical claim" but dental is used in a lot of other code sections so it looks like they excluded this type of claim from the statute. Maybe they've never used the word "dental" at all in the entire code, so you have to determine what they wanted to do based on the common understanding of "medical claim."

No matter how textualist you are, you're still simply trying to figure out if the legislature wanted a 1 year statute of limitations to apply to dental malpractice or not. It's intent all the way down.

[M L]

Nope. In your example, it could be that the legislators were more focused on hookers hired by lobbyists, and that the issue of whether medical claims included dental never actually occurred to a single solitary one of them. And therefore no intent exists or will ever exist on the question, period.

What you're actually doing with all of that research is figuring out what the text means, according to its original public meaning.

In fact, the legislators could come out and say, I did NOT mean to bar dental claims after 1 year, I SWEAR it on my MOTHER'S LIFE!! But if the text clearly indicates otherwise when read with reference to other code sections, then their intent doesn't matter.

[LawTalkingGuy]

"What you're actually doing with all of that research is figuring out what the text means, according to its original public meaning."

Because that's how you figure out what the legislature intended.

"But if the text clearly indicates otherwise when read with reference to other code sections, then their intent doesn't matter."

It does matter, and the intent is reflected in the text of the statutes. How is this so hard for you to understand?

[M L]

As I just explained, it could be that no intent exists.

"Because that's how you figure out what the legislature intended."

No, you don't figure out the meaning of the text in order to determine what the legislature intended. You might figure out what the legislature intended in order to help determine what the text means, though.

"It does matter, and the intent is reflected in the text of the statutes."

No, actually, it's possible that intent is not reflected in the text. Have you ever seen a typo in an email or text message that changed the meaning, or poor grammar or spelling or someone learning English as a second language?

Maybe the legislator that swears on her mother's life is telling the truth, and she just did not read the bill or comprehend it. Did you know that they don't read bills?

Furthermore, it's a bit nonsensical to talk about a singular "the intent," as if there is a singular intent of a body that might comprise hundreds of individuals. In fact, it's likely that there will be disagreements among the legislators as to what a text that they passed means, as well as what the general intent was.

Are you beginning to understand?

[LawTalkingGuy]

Everything you just said is why textualism is a theory about how to determine legislative intent. Every legislator is possibly different in their intent, but as a group they voted on a text that ended up as a statute. It’s a constructive intent to be sure, but it’s an intent nonetheless. That’s how you figure out what they wanted as a group who accepts that voting on bill text turns them into law. That’s why Manning says it’s about intent. You’re not looking at the text for no reason, you’re looking at it because you’re trying to figure out what the law making body of the sovereign is trying to get you to do. Do they want you in prison or not? That’s intent. Do they want you to be able to sue or not? That’s intent. The textualist says the only way to figure that out is to look at what they voted on. If as a group they didn’t want those results it wouldn’t be in the text. If as a group they did, it would be.

[M L]

No, you've got it backwards. It's: Does the law require you to be sent to prison? Does the law allow you to sue? That's not intent. It's text. Intent may not even exist, if none of them thought of the particular question you're asking, so there would be no intent. If it does exist, intent may be evidence of what the text means. The law is what the text means. Intent is ancillary, and could be nonexistent, unknowable, or contradictory.

[LawTalkingGuy]

You’re talking about text like it just pops into being out of the ground and isn’t due to intentional acts by humans acting in concert.

[not me]

People need to stop using the 2+2=5 analogy. To anybody who works with significant figures it's terrible reasoning. Say 2+2=14 or something. Or 2+2=22.
Because 2.4 measured with the accuracy of 1 significant figure is 2.
And 2.3 measured with the accuracy of 1 significant figure is also 2.
And 2.3+2.4 (sorry I don't know how to miniscule the decimals) = 4.7, which, as we only have one significant figure, is 5.
2+2=4+/-1. Anywhere from 3 to 5.
2.0 + 2.0 = 4+/-0.1 so that's 3.9 to 4.1
Sorry. Pet peeve.

[Sarcastr0]

Brett, every sacred cow you talk about on this website aligns with your understanding of legal right and wrong.

Again, everything you say about living constitutionalists being unmoored and outcome oriented is being revealed in you.

[Krychek_2]

And sacred cows really do make great hamburgers.

[M L]

Imagine thinking that the decisions made by the framers when they set up the Constitution were, by and large, good and sound decisions.

What craziness! To agree with the framers. Surely that's just another big tell reiterating that people who disagree with me are arguing in bad faith. (Sarcastro)

[Krychek_2]

Here's the alternative way of looking at it: If the framers came back from the dead, you would be hard pressed to find a group of people whose values are more out of touch with our values. They were, after all, mostly white supremacists and slaveholders who thought the vote should be limited to white males who owned land. So why exactly should what they thought guide us today?

[M L]

First, they don't have to guide us, you just need to amend the Constitution. What's so hard about that, it's been done many times. Oh, you can't get enough people to consent to government that fits your agenda? So you want to change the rules and force it on them? I see.

Second, we already amended the Constitution precisely for the ways we disagree with the framers and differ in our values. Maybe you missed it?? It was done a fair bit ago.

As for the rest, hopefully we still agree with the framers in some important ways. Hopefully we like liberty and self-government and the consent of the governed. The framers by the way were generally very learned, gentle, courageous, intelligent persons bearing good will toward all, who contributed a great deal to peace and human flourishing for the entire globe. They were of course deeply flawed still, as anyone, but they also lived in a different time and context of which very few people have any understanding. Mostly they innovated by far the newest notions of government the world has seen, all of the opposing ideas in the years hence and the gradual capitulations thereto, are just reversions to far more ancient form.

[Krychek_2]

What's so hard about that is that in practice, "enough people" means almost unanimous. It's a shell game and I ain't playing.

[M L]

Great. So just pass the laws you want in your state or county. Why do you feel the need to force government on other people in other jurisdictions against their will, and impose one-size-fits-all solutions? Because you're an authoritarian commie freak, that's why. 🙂

[Bob from Ohio]

"Making the Constitution into a document that instantiates your understanding of right and wrong kind of ignores the point of having a constitution."

You are describing the Warren Court and all liberal jurisprudence.

[LawTalkingGuy]

Once again reminding you and everyone else that hating on the Warren court means you want school segregation, and indigent minors to face capital trials without counsel for things like consensual sodomy based on illegally seized evidence and coerced confessions.

[Bob from Ohio]

Just because the Warren Court was right on segregation does not make it right on anything else. Fast ball down middle of plate is easy to hit for a homer.

Sodomy laws were largely revoked by legislative action and Lawrence v. Texas was in 2003. So put your strawman back in the field.

[LawTalkingGuy]

Lawrence is the product of Warren Court precedents. And fine, lets test the hypothesis: lets go case by case:

Do you think we should have warrantless wiretaps or other searches that don't take into account the reasonable expectation of privacy (No Katz)?

Do you think there should be no remedy for coerced confessions, (No Mapp, No Miranda)?

Would it be okay to take a human body and probe it without a warrant or any probable cause to search for evidence (No Rochin)?

In the limited circumstances where a search would in fact be illegal because of a lack of Warren Court precedents, should that evidence be used anyway (No Mapp)?

Would it be okay for the state to conceal or destroy evidence favorable to him (No Brady)?

Now that we have our evidence and favorable evidence is gone it is time to charge the suspect: an indigent minor age 17 The crime? Consensual sex with another 17 year old.

First, would you say it is okay if he has no due process rights whatsoever so long as he remains in the juvenile system (No In re Gault)? That means a juvenile judge can send him to juvenile detention until he is 21 without any evidence BTW.

If its the adult system is it okay if the Court proceeds without counsel and says he has to fact the legally trained prosecution on his own (No Gideon)?

Is it okay if he can't have a jury because the right is not incorporated (No Duncan)?

Is it okay if a jury is chosen the prosecutors can make race based exclusions (No Taylor, or its progeny, Batson)?

He's found guilty obviously, let's talk punishment.

Would it be okay if the legislature permitted and a court imposed, a capital sentence for this (No Trop v. Dulles and its progeny: Coker, Roper, and Kennedy)?

Would it be okay if the sentence was life without parole including solitary confinement (cases flowing from Trop)?

Would it be okay if while in prison, the minor was forced to engage in Christian prayer with no remedy (No Engel, no Flast)?

[Bob from Ohio]

Not going to rebut point by point.

Those are mostly, if not all, policy decisions pretending to be judicial decisions. Statutes or state court decisions could take care of most of any actual horrors.

As for policy, in general, I do not think "the criminal is to go free because the constable has blundered."

[LawTalkingGuy]

Statutes or state court decisions could take care of most of any actual horrors.

But they didn't, did they? That's why they were at SCOTUS in the first place.

You're not going to rebut because you know deep down I am right, and you are wrong and you can't bear to admit it. And to the extent you actually agree with these outcomes it reveals something dark and ghoulish about yourself that you are deeply ashamed of even typing out.

[Bob from Ohio]

You're not going to rebut because I have work to do.

You can cherish your silly delusions about me all you want though.

[LawTalkingGuy]

They're not delusions. You type them out for all to see.

[LawTalkingGuy]

“They wouldn't be overturning the precedent when they "didn't like it", only when it was wrong.”

But they’re deciding what is “wrong” in light of their chosen interpretive methodology, “originalism,” that is a product of their subjective values. That methodology is just as results-oriented as any other one. I mean why do you think they chose it? There’s just a pseudo-intellectual veneer of pretend scholarship on top done by amateurs with a hubris problem.

[Brett Bellmore]

Not in any meaningful sense of "results oriented". This is just vice denying that virtue can be real.

[LawTalkingGuy]

I totally believe virtue is real. Just that originalism isn’t it. It’s methodologically dubious and makes such sweeping and bold claims that just aren’t supportable.

[David Nieporent]

No. Prof. Blackman's own formulation (and that of his probably mythological 3L) is that originalism was chosen to advance conservative policy preferences, and that if it isn't delivering that, then some other interpretative method must be chosen to advance those preferences.

[Brett Bellmore]

No, I don't think that's a fair account of the standard.

Rather, the issue here is, originalism didn't originally mean, finding what the law originally meant, and then ignoring that if there was a contrary precedent.

It originally meant finding what the law originally meant, and then ruling on that basis. Overturning wrongful precedents, fixing the rule of law, not just identifying where it is broken and leaving it that way.

Nobody outside of academics playing word games has any use for an originalism that doesn't end up put into effect. That identifies mistakes and refuses to fix them. If that's all originalism is going to be, well, we might as well accept that the Constitution is dead, and just fight for our policies, ignoring it.

[David Nieporent]

Rather, the issue here is, originalism didn't originally mean, finding what the law originally meant, and then ignoring that if there was a contrary precedent.

Originalism simply didn't make claims about stare decisis one way or the other. Originalism told us how to interpret a provision, not whether to overturn an existing decision about that provision.

Stare decisis is an inherent part of our legal system. And it does not mean, "Don't overturn decisions if they are correct," because, well, duh. We don't need a fancy latin phrase for sticking with decisions that we agree are right. It means don't overturn decisions without good reason. Incorrect is necessary, but not sufficient.

[Lee Moore]

a lawyer's job is to make predictions, as in, If you take Action X, Legal Consequence Y will follow. I can only do that if precedent means something.

Why so ? If SCOTUS was stocked with originalist Justices, who felt it was their duty to adjudicate cases in accordance with th original meaning of the text, then what would prevent you from advsing your clients according to your best guess as to the original meaning of the text ?

You might be guided by precedent in your efforts - ie if there's a case that appears to provide a precedent, did the Justices appear to have a good and serious stab at teasing out the original meaning of the text, or did they appear just to slip down their pants, fumble behind them, and produce a rabbit ?

You yourself confirm that they won't always follow precedent, so if stare decisis is King, it isn't really King. You have to work out the precedent, and then guess whether the judges are going to follow it.

As Brett says, if they screw up the interpretation - or if they pull it from their rear ends - sticking with it simply compounds the idiocy.

There is obviously a case for SCOTUS following its own precedents, where the precedent is the result of a prior SCOTUS determining honestly that the text is unclear and they have to come down one way or the other. But if a prior SCOTUS plainly got it wrong - from the originalist perspective - they should correct the error.

[LawTalkingGuy]

“then what would prevent you from advsing your clients according to your best guess as to the original meaning of the text ?”

Time and training. (Something the court lacks too, but they at least have more resources to deal with this question). And even with those, it’s not easy to predict which sources or how an “originalist” court is going to use them in any particular situation.

[Krychek_2]

Lee, partly because the idea that anyone knows what the framers thought was the original meaning of the text is a bit specious. For some of it they did; for some of it they didn't. I don't know, and neither do you, what the framers would have thought about the Internet, or whether all the school and workplace shootings we have would have impacted their view of how the Second Amendment should be interpreted, or how the realities of modern urban life might have impacted their understanding of property rights. Anyone who claims to know what the framers would have thought about issues they never thought about is misguided if not lying.

Which is one reason (of many) why originalism is an almost useless approach to constitutional interpretation.

[Krychek_2]

And I forgot to mention, we also have the benefit of almost 250 years of seeing how things have worked out in actual practice that the framers didn't have. I am personally skeptical that most of the framers would still embrace the electoral college if they could have foreseen Donald Trump, but of course I don't actually know that; that's just an educated guess.

[Brett Bellmore]

But, of course, if you really think the EC is a bad idea, and that this view is widespread, there's always Article V. Until it's used, the Constitution will continue to mandate an electoral college.

A consistent theme of mine: If you have a bad constitution, and you pretend it means something good, that's not remotely the same in effect as actually having a good constitution. Because you have to staff the government with people who are willing to pretend that constitution means something other than what it says.

Such people will NOT govern in the same way honest people would have governed under a constitution that actually meant what you wanted.

[Krychek_2]

Brett, if the original Constitution is slowly strangling us to death, and does not provide a framework for change that actually works, then sometimes you just gotta do what you gotta do.

[Lee Moore]

So, stipulating that the events of Jan 6 constituted an "insurrection", you're OK with it anyway ?

[Krychek_2]

No, because the insurrection was an attempt to overthrow a democratic election. The whole point of democracy is that if you don't like the result, you can change it two or four years later.

[Lee Moore]

I thought you were complaining that the EV was not democratic.

The point about the last election, and indeed any election in the US, is not that they are "democratic" but that they are the lawful way of electing officials, as prescribed by the US Constitution / federal law, or the State Constitution / State law. It would definitely not have been lawful for the Congress in Jan 2017 to say "Hillary got more popular votes than the Orange One, so she wins."

Thus attempting to overturn a lawful election is an offense against the law. Whether it is an offense against democracy is irrelevant - and as the Hillary case shows offenses against law and offenses against democracy may point in opposite directions.

And thus - judges making up stuff and calling it law is indeed analagous to the activities of insurrectionists, for it substitutes the judge's preference for the law, just as rioters may attempt to substitute their preferred President for the lawfully elected one.

[Brett Bellmore]

"If" the original constitution is slowly strangling us to death. It isn't.

And Article V actually works.

Look, the fact that you can't withdraw money from the bank that you didn't deposit is not proof the bank doesn't work, and you're justified in robbing the bank. If you can't get the amendments you want using article V, that doesn't mean article V isn't working, any more than "democracy is broken" because your candidates lose elections.

It means you don't want popular amendments.

[Krychek_2]

2/3 of each House and 3/4 of the states means that an awful lot of popular amendments will never stand a chance. It's not the requirement that amendments be popular that I object to; it's the requirement that in practice they be damn near unanimous.

And it's an easy position for you to take because your preferences were mostly cast in constitutional concrete 200 years ago. Suppose we put that shoe on the other foot: You can have your Second Amendment if you can, today, get it passed by 2/3 of each house and 3/4 of the states. Have at it.

[Brett Bellmore]

Common misconception. If 55% of the public, uniformly distributed, wanted an amendment, then every member of the House, every Senator, would find that 55% of their constituents favored it, and it would be adopted so fast your head would spin.

A supermajority requirement in a legislature does NOT require supermajority levels of public support to achieve. It just requires that such support as there is be widespread.

The real Article V problem these days isn't that there aren't potential amendments that have the requisit level and distribution of support. It's that the preferences of office holders have diverged from those of the voters, to the point where the legislators don't want the same sorts of amendments the voters want.

So that nothing that would get passed by Congress stands a chance of being ratified, and nothing that would be ratified stands a chance of getting passed by Congress, because we and they want different things.

And with judicial deference and living constitutionalism, why does Congress need amendments? Most of the time, the courts will just roll over and play dead if Congress claims some new power.

[Krychek_2]

Brett, true, but irrelevant. Not only do I need 55% in major population states, but I also need 55% in flyover country. If I have 95% of major population states but zip in the Great Plains, it's not going to pass, even though that would work out to a supermajority of the county taken as a whole. And my view continues to be that dwindling minorities should not be able to prevent large majorities from doing what they want to do.

[Brett Bellmore]

Yes, it's a federation, and federations are typically structured so that one part of the federation can't gang up on another. But this does not require that support being damn near unanimous. It requires that it be widespread.

Granted, it's a problem for the left that, rather than having your supporters spread uniformly across the country, you utterly dominate some places, and do badly in others. But that's a problem of your own making.

" Suppose we put that shoe on the other foot: You can have your Second Amendment if you can, today, get it passed by 2/3 of each house and 3/4 of the states. Have at it."

I see no reason why I should be required to reenact an amendment that's already in the Constitution. Why don't you demonstrate that you can repeal it, instead of it defaulting to being 'repealed' if it can't repeatedly be ratified?

[bernard11]

Anyone who claims to know what the framers would have thought about issues they never thought about is misguided if not lying.

Not to mention that the word "framers" is plural. Does anyone think they would have been unanimous, or anywhere near it, on most issues?

[Lee Moore]

That is of course one of the reasons why any interpretative scheme which claims to be discerning the legislators' intent, as opposed to the meaning of the legal text they promulgated, is a crock*. Fortunately originalism is a textualist scheme, not an intentionalist scheme.

* a crock qua honest method of administering the rule of law. Not a crock qua scheme for allowing judges unlimited wiggle room to apply their preferences and daub them "that's the law, folks !"

[LawTalkingGuy]

Well I guess the originalists claim they aren’t diving the framers intent directly, but are doing it indirectly via determining the original public meaning of terms. Since the small group of framers were divided, inconsistent, or silent on some things they figure they can figure out intent by determining what a large group of people would have thought they meant at the time.

Which to me, is just as ridiculous if not more so. Even with the larger focus, constitutional meaning was still one of the most hotly debated topics of all time so the idea you’re going to get a definitive meaning is still wrong. And FWIW you’re still only looking at a small set of sources to find this meaning anyway and it’s not like those sources are representative of the entire society.

[Krychek_2]

Yup. You'll get just as accurate results by reading the horoscope column in today's paper.

[Sarcastr0]

I think you can come up with a general public understanding. It's certainly a lot more tractable an inquiry than a collective authorial intent.

I think originalism isn't correct, but there is something behind why its scholarship has turned towards more coherent formulations, and I'm not going to stop them.

[LawTalkingGuy]

You might be able to. But then you get to the generality problem Balkin has identified snd you’re back to square one.

I mean this is a society that hotly debated for over 50 years whether the federal government could spend money on roads. I don’t think that getting an “original public meaning” if such a thing exists is entirely helpful. At the very least original public meaning originalism
can’t make the definitiveness and sole legitimacy claims it does given how fraught meaning and interpretation is.

[Sarcastr0]

Yeah, that's my issue with originalism (the real one, not the partisan cudgel one) as well.

Not that it's incoherent, but that it's unrealistic.

[Lee Moore]

Well I guess the originalists claim they aren’t diving the framers intent directly, but are doing it indirectly via determining the original public meaning of terms

Then you're guessing wrong. Originalists aren't attempting to divine the "framers intent" - if, as several point out, there could be such a thing. They are attempting to divine the meaning of the words they wrote down, and to the extent that the current meaning of those words has drifted away from the original meaning, they're plumping for the latter.

The meaning of the words is controlling. The framers intent is not.

[LawTalkingGuy]

Textualists claim that the only evidence of legislative intent is the text itself, and the way to understand the text is to understand the common meaning at the time of passage. So too with originalism. They’re trying to figure out what the legislative bodies who drafted and adopted the constitution meant when they wrote it and ratified it and to do that they need the original public meaning. It still comes down to intent just indirectly.

[Lee Moore]

No.

LTG : They’re trying to figure out what the legislative bodies who drafted and adopted the constitution meant when they wrote it and ratified it and to do that they need the original public meaning. It still comes down to intent just indirectly.

Scalia : "[it] is the law that governs, not the intent of the lawgiver."

Oliver Wendell Holmes : "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."

We are not interested in what they meant, or what they intended, or what they had for breakfast. We are only interested in what the words they wrote down meant.

Textualism is the explicit rejection of a free floating legislative intent, and the explicit doctrine of the superiority of the text.

[LawTalkingGuy]

And what does the text represent? Where did it come from? It didn't come from the aether. It came from a body of people to chosen to accomplish a legislative task. It rejects judicial invention of legislative intent based on material extraneous to the text, but it does not reject the concept of intent entirely.

[Lee Moore]

Indeed. That the legislators presumably intended to promulgate some legal rule, rather than to create an object d'art, or a long winded joke is certainly the textualist's favored theory as to how the text came to exist.

However, once the ink on their law is dry, the legislators' intent, or intents, lose the privilege they had when they decided what to write.
The reason for this loss is that the object of the law - the humble citizen - cannot fairly be expected to obey the unspoken wishes of a band of politicians, and can only fairly be bound by the actual rule they have promulgated.

So the "intent of the legislature" forms part of the justification for relying on their text as the definitive statement of the rule. It is not, except in cases of ambiguous text, part of how we divine what the law is. This was what they wrote - the ink on the page is the law. Understood always as a law, not a piece of art or a joke or some other piece of scribbling.

Now the will'o the wisp "legislative intent" may pop up at a later stage, if we have got stuck with ambiguous text. If. But the whole point of textualism is to allow the citizen to rely on the words - understood as law, yes, understood to be read in context, yes - but never to be at the mercy of some dictator in robes saying "nah, these words don't quite capture what I think they were trying to do."

Because we are understanding the legislators to be engaged in a serious and at least semi-rational effort to produce text that is to stand as law, if the text makes no sense or is irrational, then our "legislators' intent" supposition may cut in to say - this is one of those rare occasions when we can definitively conclude that this text would not have fitted any rational legislative scheme. It must be a mistake.

But this is still not giving primacy to our suppositions about the intent of the actual legislators - whatever this may be - it's a case of no rational legislator could have intended to write this text. It must have been a mistake.

Thus, for example, we have the recent ruling by the judge in the Rittenhouse case on the charge of illegally carrying a gun. It does appear that according to the text, the judge is right. It may be that that does not accord with what most of the actual legislators actually intended. But since the text is - with considerable effort I concede - pretty clear, and since the rule is a perfectly possible one for a rational legislator to enact, that should be the end of the story.

Even if we were to discover contemporaneous written notes by ALL of the Wisconsin legislators who voted to pass the law, conclusively proving that they intended that the law should make any carrying of a long gun by a 17 year old illegal, except when hunting with a hunting license, that would and should be irrelevant.

Because young Mr R should be bound by the rule they wrote, not by the rule they hoped to write.

But if the law including its provisos and exceptions, when fully teased out textually, revealed for example a detailed scheme whereby people could apply for hunting licenses in Wisconsin, but that hunting with a license was a crime, while hunting without a license turned out to be lawful, we could reasonably conclude that there had been a mistake. Whatever we may think of actual Wisconsin legislators, no rational legislator could have written such a rule.

[Absaroka]

"the idea that anyone knows what the framers thought was the original meaning of the text is a bit specious."

I dunno. It seems to me that the statement "the framers didn't think the Eighth Amendment proscribed hanging horse thieves" is very likely to be true.

[Sarcastr0]

Unless they thought that the document they were making was more framework than exhaustive directive.

[Absaroka]

There are surely going to be ambiguities. Should rapists be able to have guns after serving their sentence? It was kind of a moot point in the 1700's, because rapists were, I think, pretty universally executed. What does that mean for today's rapist or check forger? We just don't know for sure. People have strong faith in both directions, but that's different from knowing.

We have to guess about felons and guns, whether the 2A covers hand grenades, the 4A implications of GPS trackers, etc., but we don't have to guess whether he president needs to be 35, that each state gets 2 senators, that presidential elections are held every 4 years, and that you could hang horse thieves. Those may all be outdated - maybe the president should have to be 50 (we live longer!) or 18 (old enough to fight!). Maybe Delaware shouldn't get two senators. But what the constitution said about those things isn't ambiguous, and we shouldn't give Delaware 3 senators without amending the constitution.

[Sarcastr0]

I disagree with nothing in this comment.

I think the horse thief hanging and 8A's effect theron belongs in the ambiguous camp is all.

[Absaroka]

"I think the horse thief hanging and 8A's effect theron belongs in the ambiguous camp is all."

Can you elaborate? My analysis is that the founders/founding era public could not have thought hanging horse thieves was problematic, because they kept doing it for a hundred odd years without any objection being raised. Where are you finding ambiguity?

(just to be clear, BTW, as policy matter I don't support hanging horse thieves; I just think it is constitutional)

[Stephen Lathrop]

Absaroka, I suspect in the historical record of the founding era you will be hard pressed to find much evidence of horse thief trouble, and, of course, considerably less evidence of horse thieves hanged. Maybe I am wrong, but why don't you give it a try.

[Absaroka]

If you prefer to substitute rapist for horse thief, that's fine.

That said, I fear you aren't following the discussion. It is not about how often women were raped, nor whether the usual punishment was the stocks or hanging - it was whether the founders/founding era population generally thought it was constitutional to hang rapists.

It wasn't universally favored - Thomas Jefferson's draft constitution for Virginia would have limited capital punishment to murder and treason - but: '' That bill, which Madison urged the Virginia
legislature to adopt, failed by just a single vote, with Madison attributing its defeat to "[t]he rage against Horse-stealers."'

But society at large happily hung rapists for many years. The notion that the Eighth Amendment prohibits executing rapists is a recent innovation.

[Brett Bellmore]

" It was kind of a moot point in the 1700's, because rapists were, I think, pretty universally executed."

Not so much moot, as that felonies were, almost universally, crimes for which you, not necessarily were, but *could* be executed. That being the case, not being executed, but "merely" losing some of your rights, (Maybe all of them; The 13th amendment explicitly permits slavery as a criminal penalty.) was a lesser punishment.

[Cal Cetín]

“It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly."

/Jonathan Swift, Gulliver's Travels

https://www.gutenberg.org/files/829/829-h/829-h.htm

[Lee Moore]

I am incined to agree with Brett. And I'm slightly puzzled by Prof Kerr's comment :

As Marc DeGirolami put the point, originalism was understood as a theory of interpretation, while stare decisis was understood as a theory of adjudication.

However Marc DeGirolami described "originalism" thus :

As a theory of interpretation, originalism is the view that the text of the Constitution means what it meant to the relevant public adopting it. As a theory of adjudication, originalism holds that judges should therefore decide cases by applying the text in accordance with the original public meaning.

So Prof Kerr's formulation of "originalism" seems to have lopped off the second half - originalism as a theory of adjudication. And a theory that is different from a theory of adjudication that gives primacy to stare decisis.

Thus if once, and perhaps future, originalists who had bought into originalism as a theory of interpretation and of adjudication discover that it has morphed only into the first half, then it's hardly surprising if their commitment to the new, different, half-idea is less than their commitment to the old one.

If and when it appears that the Justices that these originalists worked for decades to put on the bench, who they fondly imagined were Part I and II originalists, are in fact only Part I originalists, and maybe not even that, it's not surprising if they have a bit of a temper tantrum.

However taking Prof Kerr's remarks at face value, it's a bit of a puzzle that he's puzzled. For if your view of originalism is that it stops at working out the words mean, and the question of how you decide cases doesn't need to correlate with the meaning you have just studiously puzzled out, then in Prof Kerr's universe you can be :

(a) a perfectly good originalist (in the matter of interpretation)

and yet flip to being

(b) a perfectly good follow my party's call merchant when you actually adjudicate the case.

And since "originalism" per Prof Kerr has no adjudication element, (b) leaves you as a non hypocritical originalist in good standing.

[Michael P]

It's also rather bizarre to put so much weight on the view of a single, anonymous, 3L, plus an assertion that this view is "representative" of some unspecified group. Couldn't they find, like, a blog comment by someone who had at least passed the bar exam?

[LawTalkingGuy]

To be fair: 3L Federalist Society President likely means US District Judge in as little as 7 years.

[dwb68]

Perhaps this is the difference in perspective between academic theorists and the practitioners who most populate the national conference.

Reliance interests mean something to practitioners. Academics appear insulated from the consequences of their ideas. Once you are an actual decider, you have to weigh the consequences of upending people lives (along with the institutional implications of doing that).

I do not see this as a "notable shift." - its been going on as long there has been appellate courts.

Also, I should add, politicians promise things like judicial appointments, but often fail to deliver, because they like to hold wedge issues open. Republicans hated Obamacare, ran on repealing it... then didn't when they had the chance.

I dont see Roe being overturned. The fact that Roe has not been extended to other bodily privacy issues like recreational drugs, medicine (hello FDA and CDC - my body my choice) etc. shows how weak it really is already. It will probably get scaled back a little, but I just don't see the Supreme Court burning a lot of political and institutional capital on this.

[Brett Bellmore]

Prior to Roe, you'd probably have said that you didn't see the Supreme court taking abortion and making it a constitutional right.

[dwb68]

meh. The abortion rate has dropped precipitously over the last 45 years. The best way to prevent abortions is to give kids alternatives and an education. A lot of energy and money has been spent trying to do something that at the margin has very little effect. Roe V Wade has become the virtue signalling issue of the right.

[Brett Bellmore]

Seems to me the drop coincided with the availability of fetal ultrasound, which made the previous uterine 'black box' transparent, so the woman could see what she was contemplating killing.

It's no accident that abortion advocates have opposed ultrasound requirements. They don't want the woman seeing what they'd kill.

[dwb68]

nah. The drop has been happening continuously since at least the 70s.

Fewer teens are getting pregnant in the first place. Availability of birth control is a key reason for that. Fewer unwanted pregnancies, fewer abortions.

[jb]

Look at the recent sharp drop in abortion rate in Colorado, for example. It's directly linked to widespread availability of birth control, particularly for teens.

This shouldn't be surprising: if you don't have as many unwanted pregnancies, you won't have as many abortions.

[dwb68]

Also, I should point out, conservatives have been here before with Roe v Wade. Reagan/Bush had the chance to appoint lots of judges in the 80s. Conservatives in the 80s ran on getting it overturned. The result was O'Connor, Souter, and Kennedy joining the majority in Casey, lol.

People will survive and move on.

[Brett Bellmore]

Eh, the ones who get aborted won't, obviously.

[JHR]

I'm likewise skeptical that Roe is going to be overturned, but from the perspective of a lot of pro-lifers, the point is precisely that because of Roe/Casey, many people do not "survive and move on."

[Rev. Arthur L. Kirkland]

Maybe they're recycled.

No harm, no foul.

That's no more a reach than any of the supernatural dogma that motivates most anti-abortion absolutism.

[Rev. Arthur L. Kirkland]

" Or perhaps it's the difference between what gets said before the Court has new members "

Are the new members (1) Gorsuch, Kavanaugh, and Barrett, or (2) those who will join the Court consequent to enlargement?

Thank you.

[Bob from Ohio]

The whole purpose of the Federalist Society's Bene Gesserit-like judge breeding program is to kill Roe and Casey. If that doesn't happen, it and all its theories are dead.

[Lee Moore]

I can't say what is their purpose, but the purpose ought to be to kill the kind of freestyle judgery that produced Roe and Casey. The problem is not that SCOTUS invented a constitutional right to abortion, but that it embarked upon the business of inventing new bits of the constitution (itself merely a subset of deciding cases on policy positions rather than law.)

Should a Constitutional Amendment guaranteeing the right to abortion be passed, one would hope that the Federalist Society's preferred judges would uphold it vigorously.

[loki13]

While I appreciate what Prof. Kerr wrote (and it's seconded, of course, by Bob from Ohio in the comments, who has the amazing ability to consistently say the quiet part out loud) ...

The thing that really interests me isn't the banal acknowledgement that most of us realized long ago- the originalism was just the PR mask for policy preferences that would be dropped as soon as it served its purpose. It's pretty obvious that there was always a two-track originalism; the "academic" track and then what was sold to the rubes.

The more interesting thing is this- how many of the people that bought in to, and have sold, the academic track of originalism actually believed in it? How many of them are crestfallen by the turn, and how many of them are surprised?

Is this an example of people being taken unaware at how their precious theories could be corrupted? Or is this more akin to Renault, and the academic originalist as, "Shocked, shocked to find out that people like JB are just using originalism to reach the policy results that they want."

[Sarcastr0]

I think we're about to find out.

I really hope someone is studying this, if only for amusement's sake.

Speaking of, did you see the recent study on the perception of crime rates? I think you can predict how it goes.

[loki13]

A long time ago I wrote a very long paper about how crime rates and perception mirror each other.

This was back when the crime rates were much higher.

The gist-

Imagine crime is measured on a scale of 1-10. If the actual value is 4, local media will report it as a 7 (if it bleed, it leads!). Then people perceive it to be a 6, because they rely on media, not on the actual rate or what they see. This perception may (causality is hard) cause crime to rise to a 5, as people are more likely to commit crimes if they believe crime is more prevalent.

....which cause local media to report it as an 8, etc. etc.

[Bob from Ohio]

"amazing ability to consistently say the quiet part out loud"

No reason to fudge when everyone knows something.

[loki13]

As much as we disagree, I think I've been pretty consistent in acknowledging that you, at a minimum, have been open about your results-oriented partisan preferences.

I do prefer that to those who keep maintaining the fig leaf that there is some greater principle that they are adhering to- when it's just plausible cover for the same thing you readily admit to.

[M L]

When I think of pro-lifers generally, most aren't particularly concerned about the arcane details of constitutional interpretation. Most are concerned with adhering to even greater principles like "thou shalt not kill."

But, different strokes for different folks. Certainly Roe is an abomination whichever way you look at it, even if you're just excited by constitutional interpretation.

[loki13]

I actually don't think that Dobbs (or abortion) presents a very interesting case for "originalism."

The essential problem with originalism is that it isn't tremendously useful for adjudication. Contrary to some beliefs, "originalism" was always practiced by the Courts to a certain extent as a tool in the jurisprudential toolbox. The issue is, and remains, the primacy that you give it compared to other interpretive and adjudicative methods (such as textualism, stare decisis, common law principles, prudential interests like avoidance, and so on).

Assuming that you give it primacy as an interpretative tool (in other words, assuming that original expect meaning trumps anything else), then you are still left with some major issues-

A. The adversarial process is a terrible way to do history.
B. Judges are bad historians (and law professors are just as bad).
C. The number of instances in which there is clear, unambiguous evidence of OEA is vanishingly small.
D. Even in those few instances of clear, unambiguous evidence of OEA, the actual application of it to new facts is maddeningly indeterminate .
E. We continue to move further in time from the period in which it happened; if attorneys and judges can't agree on the expected application of a statute passed a year ago, how can people agree on broad and ambiguous language from 250 years ago?

In the end, outside the very small number of issues on which it has direct and dispositive application, the majority of originalism is nothing more than a fundamentalist religion. A caste of priests will wander into the desert, pull some tablets out (sorry, law review articles) that support what they want to happen, and declare that these are the words of God (sorry, the Founders) that cannot be argued against, no matter what the law has been.

[M L]

What great principles do you adhere to, if any?

[Lee Moore]

I actually don't think that Dobbs (or abortion) presents a very interesting case for "originalism."

I am inclined to agree. To tease out the original meaning of some text, one usually needs to start with some text to tease.

[M L]

"originalism was understood as a theory of interpretation, while stare decisis was understood as a theory of adjudication. "

I like that.

Originalism should continue to be understood as a theory or the theory of interpretation.

The theory of adjudication is the part in flux. Stare decisis has been seen as important to our theory of adjudication, but perhaps there is reason to view it as less important than some would assert. Perhaps a theory of adjudication should incorporate virtues like Justice, Empathy, and saving babies from being killed by villainous cretins.

[Lee Moore]

I think the distinction is somewhat weasely, for it implies that the rule of law is consistent with judges finding that the law requires X, and nevertheless adjudicating not-X.

Which makes one wonder why anyone would bother with the first step, or describe the second process as having something to do with "law."

[M L]

You're right. But if someone were to "give up" on originalism as is being discussed, maybe it would sound like this.

When Kerr bemoans the dropping of this perspective, he's bemoaning the passing away of a state of affairs where conservatives would studiously play a game of heads I win, tails you lose with leftists. Identify the correct legal answer without regard to political outcome and studiously concede leftists if the answer dictates, but if the answer agrees with you, then studiously concede to leftists because stare decisis.