Richard H. Fallon (Harvard Law School) has posted Selective Originalism and Judicial Role Morality on SSRN. Here is the abstract:
The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court’s actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings.
This Article defines and documents the phenomenon of selective originalism. Having done so, the Article then explores the cultural and jurisprudential conditions in which selective original-ism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The Article criticizes selective originalism for its inconsistency and intellectual dishonesty. But it also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises?
We would misunderstand selective originalism, I argue, if we labeled it as disingenuous and probed no more. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to adhere to original meanings in some cases, though not in all. But why? The answer, I argue, contains lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices’ functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal. It chooses its own cases, typically for the purpose of changing the law (even if only by clarifying it), and its decisions bind all other courts. In light of the Court’s distinctive functions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law. Though role morality is contestable, it can, in principle, be determinate and binding.
Viewing the Justices as subject to obligations of role morality does more to illumine than to resolve many of the issues that the Court confronts, but it should lead to unanimous agreement on one point: There is no plausible defense for the selective originalism that the current Justices increasingly practice.
This paper will be widely read and discussed. Highly recommended. Download it while it's hot!
