Thread by @RandyEBarnett

This is basically correct. Bork was defeated after calling himself an “originalist.” For 30 years no Republican nominee* identified as an originalist until Gorsuch. Gorsuch was confirmed then everyone did. The taboo was broken. But why? What changed? 🧵

https://twitter.com/orinkerr/status/1956431530747969963

* Scalia and Thomas publicly identified as originalists after their confirmation. Kennedy never did. Alito did around the time of Scalia’s death.

Part of what changes was originalist scholars had substantially improved the theory over those 3 decades. In 1987 there basically was no theory. (Paul Brest had to construct on to refute.) But by 2017, the theory was much more resilient against the anti-originalist playbook.

That’s certainly not the sole cause, but I’d say it was a necessary one. And this speaks well of academic legal thinkers and the importance of what we law professors do. But wait, there’s much more.

A huge factor was the 5-4 failure of the Obamacare challenge (which wasn’t originalist) after oral argument went well. The highly visible culprit was old-school conservative CJ Roberts who explicitly asserted judicial restraint. The political backlash on the right was enormous.

When the next Republican administration came in, the external refrain and internal vetting went from “no more Souters” to “no more Roberts.” This gave the “judges should enforce the Constitution” contingent the upper hand over the “judicial restraint” group.

But that then raised the question: just what does “enforce the Constitution” actually mean? By this time, the intellectual architecture of “public meaning originalism” was in place to provide an intellectually defensable answer.

You can read more details about what happened in *A Life for Liberty*, which is an insiders’ behind-the-scenes look at this whole sequence of events. It also covers the role of the Tea Party in this saga.
a.co/d/8rTO9nj