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38 Const. Comment. 1 (2023)

handle is hein.journals/ccum38 and id is 1 raw text is: THE PARADOXES OF A UNIFIED JUDICIAL PHILOSOPHY AN EMPIRICAL STUDY OF THE NEW SUPREME COURT: 2020-2022 Victoria Nourse' Six Justices now share a unified judicial philosophy in constitutional and statutory cases that they call original public meaning analysis. This Article provides the first empirical analysis of the Supreme Court's new interpretive philosophy, covering the 2020-2021 Terms and over 300 opinions. Although most associate originalism with history, the Supreme Court's version of originalism depends upon finding the original public meaning of text-hence the convergence of originalism and textualist modes of analysis more familiar to statutory than constitutional interpretation. The good news for the Justices is that text and history now matter in both constitutional and statutory cases. The bad news for the Justices is that, in twice as many statutory and constitutional cases, the Justices conflicted about text, textual application, or interpretive principle. If disagreement amounts to a distemper as Justice Scalia once 1. Ralph V. Whitworth Professor in Law, Georgetown University. My thanks to the faculty and students at the Harvard Public Theory Workshop and the Eskridge Yale Interpretation Seminar, including but not limited to Dean John Manning, Dean Martha Minow, Professors William Eskridge and Richard Fallon for intense reading and incisive comments. Special kudos to friends and colleagues, Professors Bill Buzbee, Josh Chafetz, Tara Leigh Grove, Lisa Heinzerling, Anita Krishnakumar, Jane Schacter, Brian Slocum, Brad Snyder, and to Jill Hasday, editor-in-chief of this journal. I use the term we in this paper because it could not have been completed without the extraordinary help of several students: Louis Capizzi, Alexandra Li, Rosalie Peng, Eloy LaBrada Rodriguez, Ryan Trumbauer, and most importantly, the highly skilled Kelly Yahner. Finally, special thanks to my data-savvy colleagues, Neel Sukhatme (an economist) and Kevin Tobia (an empirical philosopher), partners in a new enterprise, the Supreme Court Interpretation Lab (SCIL), at Georgetown Law Center. This paper inaugurates that effort and its full data (a 134-page Appendix, including a content analysis) is posted there as well as in the online version of the present issue: https://hdl.handle.net/11299/259937. All opinions and errors are my own. 1

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