Every True Story Ends in Death: How the Roberts Court Killed Originalism

Abstract

Although there are at least six justices on the Roberts Court who identify as strong or moderate originalists, none of them exercise judicial review in an originalist manner, and the Roberts Court as an institution is no more originalist than previous Supreme Courts. The crucial difference between past Supreme Courts and the present one is that the current justices publicly claim to be guided by originalism but decide cases by using the same living constitutionalist, pluralistic model of judicial review that the Court has used for centuries. That disconnect harms the important rule of law value that government officials transparently explain the reasons for their decisions.

Keywords: Supreme Court, Constitutional Law, Originalism