Is the current Supreme Court an originalist court? It should be? Professor Marc O. De Girolami published an editorial on New York Times arguing that the current Supreme Court has embraced traditionalism in its approach to constitutional interpretation, and that this is a good thing. It’s worth reading. Here’s a taste:
This court is conventionally considered originalist. But it is often more usefully and accurately understood as what I call “traditionalist”: in areas of jurisprudence as diverse as abortion, gun rights, free speech, religious freedom, and the right to confront witnesses at trial , the court – led in this regard by Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh – has indicated time and again that the meaning and law of the Constitution must often be determined as much by enduring political and cultural practices as by the original meaning of the his words.
The fact that the Supreme Court appears to be finding its way to an open embrace of traditionalism should be widely celebrated. To be sure, the court’s traditionalism has played a role in many decisions popular with political conservatives, such as the 2022 Dobbs ruling that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama appointee, used it in a court decision — and Justice Amy Coney Barrett, a Trump appointee, expressed some skepticism about it.
Traditionalism may not be partisan, but it is political: it reflects the belief – without obvious partisan significance – that our government should strive to understand and promote the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, although the justices have rarely explicitly recognized it. Traditionalism should be favored by all who believe that our legal system should be democratically responsive, concretely (rather than abstractly) oriented, and respectful of the values shared by Americans over time and across the country. . . .
Tradition, in law and elsewhere, highlights a fundamental fact of human life: we admire and desire to join ways of being and doing that lasted centuries before we were born and that we hope will last long after we are gone. . In essence, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, serving the common good of our society.
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