Wednesday, August 7, 2019
During her 2010 Supreme Court confirmation hearings, Elena Kagan, fresh off a stint as Barack Obama’s solicitor general, created a minor stir in legal circles by stating, “We are all originalists.” While clearly an exaggeration, this statement spoke to a subtle but increasingly apparent truth: Since the 1980s, constitutional text and history have become ever more central to Supreme Court jurisprudence.
We are witnessing a quiet judicial revolution. Slowly but surely, and often in fits and starts, judges across the country are paying more and more attention to what the Constitution meant when it was ratified. If you know where to look, the trend is unmistakable.