Every year at the beginning of the Hugh Hazel Darling February Works-in-ProgressConference, I discuss what I regard as the most significant developments concerning originalism in the past year.

　　2024 was another big year for originalism—with the Supreme Court deciding many important cases on originalist grounds, while regrettably departing from originalism in a few others. Even events outside the Court show how important debates about originalism remain for the country.

　　Perhaps the most important Supreme Court originalist decision involved statutory originalism—the Loper Bright v. Raimondo case, which held that the Administrative Procedure Act did not allow for Chevron deference. In my view, Chief Justice Roberts wrote a persuasive originalist opinion showing that the APA required courts to decide legal questions without Chevron deference. I rarely find Roberts’s opinions persuasive, but this was an exception.

　　What makes Loper Bright especially significant is that it is likely to have a substantial impact on a large number of cases. Agencies will have less power to implement their policy agendas and less power to engage in the wild and disorienting swings of policy that result when one administration replaces another. Overturning Chevron deference restores some limits on the executive branch.

　　Loper Bright is also significant because it may be part of a trend of originalist decisions that constrain the administrative state. Another decision from the past year doing so was SEC v. Jarkesy, which held that a fraud action for civil penalties needed to be decided by a jury in an Article III court. The Supreme Court is standing up to excessive administrative power in ways that originalists should applaud.

　　While the Court has decided some originalist cases against the administrative state, it has also decided some cases for agencies when the original meaning supported them, thus exhibiting some originalist principle. In CFPB v. Community Financial Services Association, a permanent funding provision for the Consumer Financial Protection Bureau, which allowed the agency to request an amount of funds from the Federal Reserve up to a maximum amount, was challenged as violating the appropriations clause. But Justice Thomas’s opinion for the Court relied upon originalist history to show that the CFPB appropriation conforms to historical appropriations.

　　Disappointing as this decision might be to opponents of the administrative state, it nonetheless shows principle on the part of the originalists who joined it. Even though holding the appropriation unconstitutional would have limited agency power, the decision held it to be constitutional on originalist grounds. Moreover, it seems likely that Thomas would have preferred on political grounds for the CFPB funding to be struck down but he went with originalist principle to allow it. In other words, Justice Thomas ruled with the objectivity that originalism requires.

　　Another important development involves how the Court has reached originalist decisions while minimizing the disruptive effect on nonoriginalist precedent. In some cases, the Court has cut back or refused to extend nonoriginalist precedent without overturning it. For example, in Jarkesy, the Court held that the fraud action for civil penalties needed to be decided by an Article III court while not overturning but merely distinguishing the widely criticized case of Atlas Roofing. Similarly, in Grants Pass, the Court held that prohibiting homeless people from camping did not constitute cruel and unusual punishment while not overturning but merely distinguishing the outlier Warren Court case of Robinson v. California.

　　Even more significantly, the Court overturned nonoriginalist precedent without causing undue disruption in Loper Bright where the Court applied its ruling to future cases but not to existing precedents that had applied Chevron deference. In other words, the Supreme Court ruled that existing precedents that applied Chevron deference would not be disturbed and therefore the reliance interests those precedents created would be protected. But for new cases not addressed by those precedents, the courts would apply the new Loper Bright rule. In this way, the new rule could be established prospectively without undermining the reliance that people placed on past decisions.

　　But perhaps most extraordinarily, this last year saw several of the justices debate originalist methodology. The Rahimi case especially revealed their differing approaches to originalism. While many of the justices made significant statements, I want to highlight the differing positions of Justices Barrett and Kavanaugh.

　　Kavanaugh argued that when the text is unclear, there are only two ways to resolve it—“history or policy.” He favored history. According to Kavanaugh, “the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text.”By contrast, the “policy approach rests on the philosophical or policy dispositions of the individual judge.”Thus, “history, not policy, is the proper guide.”Given this stark choice between history and policy, it is not surprising that he not only favored considering history at the time of an enactment but also many years later as the best way of discerning the original meaning.

　　By contrast, Barrett argued, much more persuasively in my view, that it is only originalist history—history from close to the period of the enactment—that provides evidence of the original meaning. While Kavanaugh cites Scalia for the view that evidence from many years after ratification is legitimately considered, even assuming Scalia meant to endorse that practice, even Scalia can nod.

　　Barrett also argues—although not in response to Kavanaugh—that even originalist history is not limited merely to precise, narrow historical examples. Instead, she writes that “historical regulations reveal a principle, not a mold” and pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning” even though “reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”

　　Originalism continues to grow in influence and to be an essential part of our constitutional discourse and decision-making.

　　I agree with Barrett, and I might add that the originalist history is seldom entirely silent on a matter and therefore one can also discern a more likely meaning, even if it is not certain. Thus, Kavanaugh’s dilemma between history and policy is less likely to occur when the originalist history is silent. But I also acknowledge that Kavanaugh does have some important points. While late practice may not have originalist force, it was treated both before and after the Constitution as having some legal force, analogously to judicial precedent. And Kavanaugh is on the mark when he writes that “when determining how broadly or narrowly to read a precedent, a court often will consider how the precedent squares with the Constitution’s text and history.”

　　Given the fascinating differences between the justices that were revealed over the last year, how can we think about the Supreme Court’s general tendency? Some commentators, such as Josh Blackman, have argued that we currently have a 3–3–3 Court. It has three conservatives (Thomas, Alito, and Gorsuch), three moderates (Barrett, Kavanaugh, and Roberts), and three progressives (Jackson, Kagan, and Sotomayor). While this may be the correct way to analyze the political divisions on the Court, there is a different 3–3–3 Court based on originalism. In my view, the three most consistent originalists are Thomas, Gorsuch, and Barrett and the three originalist moderates are Kavanaugh, Alito, and Roberts.

　　The big difference is that while Alito should be classed among the most conservative justices, Barrett should be classed among the most originalist justices.

　　While I do not agree with everything Barrett does or says, I think she is a careful thinker who makes a strong effort to follow the original meaning. She may or may not be a moderate politically but her actions appear to me to be largely the result of her originalist principles. This is exactly what we should expect from Supreme Court justices.

　　By contrast, I would classify Justice Alito to be less of a consistent originalist. While he has come to classify himself as an originalist in recent years, his strong views on precedent and his practical originalism do not exhibit as consistent a commitment to originalism as Barrett.

　　Of course, while there have been important originalist victories, I also believe there have been significant originalist defeats. I would place the two cases involving Donald Trump—the immunity case and the disqualification case—in this category, even though the originalists on the Court largely supported these nonoriginalist decisions.

　　In Trump v. US, the Supreme Court announced immunity for criminal prosecution of official presidential actions, defining the immunity in very broad terms. In my view, much of this immunity was just made up, as there is nothing in the Constitution that grants it. The Constitution does allow presidents, former presidents, and presidential candidates to be protected. But it requires Congress to pass a law doing so.

　　Why did the Supreme Court originalists reach this result? I cannot say but my guess—and here I largely agree with Will Baude—is that the Court was attempting to stop what it saw as serious, partisan abuses of prosecutorial power. One may sympathize with this sentiment while recognizing that originalism does not justify it, even if many nonoriginalist theories might allow it.

　　In Trump v. Anderson, the Supreme Court announced that the third section of the 14th Amendment could only be enforced by Congress. Again, this just seemed made up. The per curiam opinion somehow read the states out of the process of electing a president, which is clearly contrary to the Constitution’s plan. In my view, whatever one thinks of Trump’s problematic actions on January 6, they do not constitute engaging in an insurrection. The Court should have decided the case on that basis. But the originalists on the Court wanted to avoid such a politically charged reason for the decision and sought a position that be joined in part by all nine justices.

　　But originalism’s fortunes have not been confined to the Court alone—in the last year, there have also been two important books published on the theme. First, there is Jack Balkin’s Memory and Authority, which further develops his unorthodox originalism. While Balkin makes an important contribution to our understanding of how judges over the years have used history in constitutional interpretation, his argument regarding originalism is marred because he assumes that the behavior of judges far in time from the framing tells us how to practice originalism.

　　Second, there is Jonathan Gienapp’s Against Constitutional Originalism, which criticizes originalism from a historian’s perspective. While Gienapp raises important questions, he fails to sufficiently take account of the constitutional document’s reference to itself as the Constitution.Despite my criticisms, these are important books. While I don’t agree with much of what they say, they should be discussed and debated. They are a sign of the importance of originalism, that the debates over originalism remain fresh and vibrant, and constitute an important part of its continued development.

　　Finally, although many of you may have missed it, President Trump was reelected. In his first term of office, he very likely appointed more originalist judges than any other modern president—three originalist justices and many originalist circuit and district court judges. Had Trump not won the presidency in 2016, originalism would be in a much weaker position. Trump’s reelection, then, might possibly lead to further growth in the number of originalist judges. Of course, nothing is certain, as the second Trump administration may have different selection procedures and could choose conservative nonoriginalists.

　　To conclude, originalism continues to grow in influence and to be an essential part of our constitutional discourse and decision-making. In the past year, the Court has often exhibited significant originalist impulses, while unfortunately failing to adhere to originalist principles in a couple of cases. The Trump administration appears to be engaging in many initiatives that will raise constitutional issues. There seems little doubt that originalism will play an important, if not always, decisive role in how these issues are resolved.