Thread by @marty_lederman

1/ This post by Mark Tushnet is, I think, dead right with respect to at least three important, related things about the "new originalism":

balkin.blogspot.com/2019/10/academ…

@jackbalkin @espinsegall @LeahLitman @lsolum @WilliamBaude @_John_Mikhail @StephenESachs

2/ (i) Scholarly "new originalism" has virtually no (important) correspondence with judicial practice.

(ii) Judges & commentators who wrap themselves in the "originalist" mantle don't really know or care much about what the proper "new originalism" (or textualism) consists of.

3/ And (iii) "When judges and op-ed writers call themselves originalists . . . they are [mostly] virtue-signaling."

As Mark notes, these aren't novel or especially controversial propositions. Here's one recent example of mine on the topic, citing a longer work by @dorfonlaw--

4/ ... but we're hardly alone:

balkin.blogspot.com/2019/02/justic…

For me, though, Mark's post raises at least three other interesting/important questions, as well:

5/ The third is the one Mark flags at the end--viz., what to make of "the interesting ... liberal/progressive interlocutors ... who believe ... there are significant limits on judicial discretion" and yet who nonetheless think John Roberts's "umpire" metaphor is "somehow wrong."

6/ I suspect Mark thinks I'm one such interlocutor--and perhaps that's so, although I also fancy myself, like Mark, as a "deep-dyed Legal Realist," if that's even possible(?). (Perhaps this conundrum depends upon what it means to think the limits on discretion are "significant.")

7/ In any event, I wanted here mostly to flag two other--to my mind more important--questions lurking but unstated in Mark's post (which obviously are related to one another):

First, if the scholarly "new originalism" is so far removed from actual judicial practice, ...

8/ ...why are its proponents (and student law review editors) so committed to it? What are their presuppositions and objectives? (I don't mean to suggest there's a singular answer to this question: their mileage may vary.)

9/ Second, why don't such scholars (as far as I can recall) bother even to *engage* with the basic point Mark makes about the vast disconnect between new originalist theory and judicial practice, nor with the subsidiary questions raised in Mark's post? [cont.]

10/ The critique in Mark's post is ubiquitous, important & (to my mind) powerful--yet it's mostly if not entirely ignored by the new originalists. What's up with that? (As you might imagine, I have my theories/suspicions ... but what do I know?) [cont.]

11/ (Yes, Baude/Sacks's "positive turn" endeavors to justify the new originalism with reference to judicial practice--but I don't understand them to be addressing the particular points Mark raises.)

12/ P.S. The questions I raise here are somewhat, if only indirectly, related to the originalism component of Jeremy Kessler and Dave Pozen's great "Working Themselves Impure" piece.

chicagounbound.uchicago.edu/cgi/viewconten…