Dorf on Law

Last week I sent out a lengthy article to the law reviews arguing that the Roberts Court, the most self-identifying "originalist" Supreme Court in American history, has in fact, and ironically, killed originalism. This blog post is a summary of the arguments I present in that piece. A majority of Roberts Court justices self-identify as either strong or moderate originalists at the same time as conservative legal scholars and pundits are praising the Robert’s Court’s adoption of originalism as the proper method to resolve our country’s most important cases. However, for almost twenty years, the Roberts Court has consistently changed constitutional law in non-originalist, anti-historical directions to be more consistent with the GOP’s modern agenda than the values of the Founding Fathers. In other words, in the hands of the Roberts Court, originalism amounts to nothing more than virtue signaling and camouflage. This disconnect between how the justices say they are deciding co...

While not exactly click-bait, this column's headline is deliberately somewhat deceptive.  (Hence, the parenthetical disclaimer.)  After all, given the political upheavals that we are all now witnessing in the post-rule-of-law United States, such a headline might well have been teasing a column in which I call on anti-Trumpists to be more aggressive in resisting no-longer-crypto-fascism. Indeed, in a column this past July, I noted that the Supreme Court's immunity decision  had given the outgoing Biden Administration the opportunity to prevent Trump from ever taking power (notwithstanding the election's outcome) by any means necessary.  In " The Court Has Invited the Democrats to Do Their Worst ," however, I noted that even if "the alternative-reality Democratic Party that suddenly learns to play hardball finally comes into existence," they would be unlikely to resort to political violence to prevent the end of constitutional democracy.  Such extremism is...