Please Stop Calling the Roberts Court Justices Originalists

Professor Larry Solum, in addition to running the influential Legal Theory Blog, is one of the country's leading academic originalists. He very recently had this to say about the Dobbs decision, which reversed Roe v. Wade:

Dobbs does not employ an originalist methodology or reasoning. This is really not subject to reasonable dispute: Dobbs’s reasoning is based on substantive due process and does not engage with the relevant clause, the Privileges or Immunities Clause from an originalist perspective. The outcome of Dobbs might be defended on originalist grounds, but that does not transform the reasons it provides and the methods it employs into originalism.

There are a number of important and fascinating aspects of this description. First, for almost 150 years the Supreme Court has used the Due Process Clause of the 14th Amendment to review unenumerated rights cases like abortion-not the Privileges or Immunities Clause. Professor Solum apparently believes that is an originalist mistake. Leaving aside the hubris of discarding a century and a half of decisions interpreting the Fourteenth Amendment because an academic in 2026 knows more about its original meaning than the justices alive at the time, Professor Solum seems to be saying that there is no originalist basis for substantive due process at all. 

Because Professor Solum has chided me personally and others for making claims about the indeterminacy of the litigated Constitution without, according to him, doing the required research, I would be interested in Professor Solum's efforts to demonstrate that as an original matter substantive due process is unwarranted (there is a wide body of literature debating this point, as there is arguing for the Constitution's indeterminacy as an originalist matter).

But more importantly, no matter how one defines originalism, Professor Solum is correct that Dobbs is not an originalist decision. He and his writing partner Professor Randy Barnett made this argument in great detail in a recent law review article. Their key move is that decisions that may reach the correct originalist result based on non-originalist reasoning should not be considered by academics, lawyers, other judges, and the general public as originalist. I agree, and it should follow that decisions that do not use originalism at all to reach a result (and are not based directly on precedent supported by originalist reasoning) are also not originalist, even if the results may be correct as an originalist matter. And, if that is true, then the Roberts Court has decided virtually no originalist decisions, which is a serious problem of government transparency given that five of the current justices self-identify as originalists when they are in fact, like all judges, constitutional pluralists. This hypocrisy, as I've argued before, is simply a mask for GOP and conservative values.

I recently published a long article detailing precisely how the Roberts Court is no more originalist than any prior Supreme Court. When I presented early drafts of this paper publicly, or made similar points in podcasts, etc.,  the pushback I used to get from originalists was that there were not enough originalists on the Court to allow an originalist justice to write an originalist opinion. But that defense is no longer applicable. 

Professors Solum and Barnett argued that Dobbs is not originalist because its tradition-and-history focus, which spans centuries, does not stress either 1791 or 1868 enough to justify the originalist label. But that description is true for virtually every major constitutional law decision the Roberts Court has decided. Although Professors Solum and Barnett argued that Bruen is an originalist decision (it emphatically is not), I will concede the point for purposes of this post. Now let's take a quick look at other areas of constitutional law apart from the Second Amendment that the Roberts Court has drastically altered.

The First Amendment protects the “free exercise of religion.” The Roberts Court has held in a trilogy of cases that if a state decides to financially assist non-religious private schools it must provide the same assistance to religious schools. In these cases, the justices struck down important state policies balancing educational needs with the legitimate church-state-separation concern that taxpayer dollars not be used to support religion--concerns the conservative justices summarily dismissed.

This aggressive federal judicial intervention into how states fund public and private schools cannot be justified by the original meaning of the Free Exercise Clause, and in none of the cases did the conservative justices even make the effort.

The Roberts Court has struck down state and federal laws on free speech grounds with little or no originalist analysis (which if employed would likely have led to different results in most cases). For example, the Roberts Court overturned a state law banning the sale of violent video games to children, a federal law banning the depiction of animal cruelty, and civil liability for the offensive speech of people who protested near a funeral of a member of the armed forces. The Roberts Court has also used the First Amendment to overturn laws relating to commercial advertising and, most infamously, campaign reform efforts to lessen the impact of money in elections. 

None of these cases were justified through originalism. Adam Liptak has observed that the “conservative agenda . . . has increasingly been built on the foundation of free speech.” Exactly. The driver of these decisions was ideology, not text, tradition, or history. According to Professor Solum's own reasoning, these cases were not originalist.

And then there is the judicially created fantasy of “color-blindness.” In SFFA v. Harvard, the Roberts Court overruled fifty years of caselaw and held that the Fourteenth Amendment’s Equal Protection Clause requires that university admissions be “color-blind.”

That phrase is nowhere in the Constitution, and this country has never been colorblind. Moreover, as many scholars and historians have observed, the original public meaning of the Fourteenth Amendment cannot stand for color-blindness because government programs enacted at the time included racial criteria.

It is therefore not surprising that the majority opinion SFFA has no originalist justification and reads like a living constitutionalist homage to broad policy concerns. The only justice who even attempted to support color-blindness with originalist sources was Justice Thomas, and his opinion was so inadequate that no other justice joined it.

In addition to speech, religion, and affirmative action, the Roberts Court’s separation of powers decisions are grounded in the justices’ contemporary ideological preferences. The so-called major question doctrine, for example, which severely limits the ways Congress may delegate critical decisions to the Executive, reflects the justices’ anti-regulatory libertarian agenda, not a sincere attempt to reconstruct the Constitution’s original meaning. And the same is true for all of the cases implicating the so-called Unitary Executive Theory for which the Roberts Court has provided litttle or not persuasive orignalist support.

I could go on and on but you get the point. The failure of the Roberts Court to actually present originalist reasons for its complete re-making of constitutional law since Justice Barrett became the fifth self-identifying originalist to join the Court is remarkable, given the public chest thumping these justices often engage in concerning their alleged originalist bona fides.

Professors Will Baude and Steve Sachs have repeatedly argued that the fact that originalism is done poorly or even not at all does not mean the theory itself is bad. They both claim to be positivists, so that's quite the claim. Additionally, with five self-described originalists on the Court who often vote together and don't need the sixth conservative, who is not an originalist (Roberts) to sustain a five-person majority, there is no excuse for Dobbs, to cite just one example, to not be explained through originalist justifications. And yet the five-justice majority in Dobbs, according to two of the leading academic originalists in the country, failed to do so. 

Given that Dobbs is representative of the entire Roberts Court revolution, it is clear that originalism does not work even for self-identified committed originalists. And that is why legal scholars, pundits, lawyers, and even lower court judges should stop pretending the Roberts Court justices are originalist. They most certainly are not. They are simply Republicans and conservatives all the way down.