The Supreme Court is all over the headlines these days. Last Friday was the end of its 2021 term, when the few remaining unpublished opinions of the year’s term were announced. This was unlike any other. The new 6-3 conservative majority, untethered and free-ranging, gave us a whole new playbook.
But… it’s not entirely new. Antonin Scalia, the deceased Justice, replaced by Justice Gorsuch, started the train down this track when he described his jurisprudential approach as originalism. The term had been in use since the 1980s but Scalia was the first Supreme Court Justice to embrace it. An originalist, he believed, should base each constitutional decision “on what reasonable persons living at the time of the Constitution’s adoption would have understood the ordinary meaning of the text to be.” It was a radical approach when presented and regarded as unconventional by most constitutional law scholars.