Original(ism) Sin

(Excerpt)During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature on the variants, merits, and demerits of originalism, the Trump Presidency has ensured its long-term relevance—if not its ascendancy—in federal court.The general thrust of originalism is that judges should interpret the U.S. Constitution—or construct its meaning, where necessary—as if it possesses some sort of fixed meaning, a meaning typically anchored in the intentions or beliefs of those who drafted or ratified it, or in the original public meaning of the words and phrases it comprises. It is no accident that a Republican President and Senate jointly prioritized the confirmation of originalist judges; there is a strong correlation between purportedly originalist approaches to constitutional interpretation and conservative policy preferences more generally. Indeed, some scholars have argued that originalism, as the term is presently understood, derives at least in part from a political strategy adopted by the Reagan administration to advance particular policy preferences through the courts.