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138 Harv. L. Rev. F. 1 (2024-2025)

handle is hein.journals/forharoc138 and id is 1 raw text is: ORIGINALISM'S AGE OF IRONIES Sherif Girgis* Guns, abortion, religious establishments, presidential power: While today's Supreme Court identifies as originalist, it has settled constitu- tional questions on these and many other issues using history and tradi- tion, not just original meaning.1 Scholars debate whether this trend can be squared with originalism.2 Last Term, the originalist Justices them- selves joined the fray. Their reflections might foreshadow the reasoning and outcomes of future cases, including on hot-button issues. So a close look should pay off for parties hunting for five votes on a methodologi- cally self-conscious Court. It should interest citizens keen to know if the Court abides by its principles and wondering where those might lead. And a close look delivers theoretical insights. It makes vivid how easily the original meaning of the text runs out in Supreme Court cases, re- quiring constitutional construction3 to bridge the gap between vague meaning and specific outcomes. It reveals the divergent paths that originalists take when the method is pressed to its limits, casting light on originalism's deepest motivations and challenges. It turns out that in such cases, the purer one's originalism at the level of theory, the less it constrains judges in practice. Part I of this Essay distinguishes originalism and traditionalism and describes the Court's apparent turn to the latter. Part II addresses traditionalism in separation of powers cases. While Justices Kavanaugh and Barrett disagreed this Term about * Associate Professor of Law, Notre Dame Law School. I thank Joel Alicea, Rishabh Bhandari, Sam Bray, Rick Garnett, Bill Kelley, Stefan McDaniel, Jeff Pojanowski, Reva Siegel, and Garrett West for helpful feedback or discussions. 1 See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202 (2020). See generally Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 NW. U. L. REV. 433 (2023) (analyzing potential examples). 2 See generally Barnett & Solum, supra note 1, at 446 (arguing that history and tradition can be used as evidence of original meaning and purpose, consistent with public meaning originalism); Marc O. DeGirolami, Traditionalism Rising, 24 J. CONTEMP. LEGAL ISSUES 9 (2023) (distinguish- ing traditionalism from originalism); Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. REV. 1477 (2023) (arguing that the Court's reliance on political practices arising long after ratification is hard to square with originalism). 3 See Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 GEO. L.J. 1, 10 (2018) (citing KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999); KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999)) (describing the distinction between (a) endeavoring to as- certain the communicative content of constitutional text and (b) making constitutional judgments when that endeavor fails to yield a single determinate answer and calling the latter task construc- tion); see also id. at 35 (arguing that judges in cases requiring construction specify ... an imple- menting doctrine . . . consistent with the . . . original function of the relevant constitutional norm (footnote omitted)). I

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