The Supreme Court’s Originalist Evasions

Liza Batkin in the NY Review of Books:

At the start of each summer, Supreme Court commentators are tasked with summarizing an unwieldy body of work—dozens of opinions on widely ranging areas of law, as many as nine different authors, concurrences, dissents, and a docket of unsigned orders. With a pool so big and incohesive, any attempt to sum it up runs the risk of being sunk by caveats. This term, the first with Amy Coney Barrett rounding out a decisive conservative majority, that risk was especially visible.

Many observers chose, as the overall theme of the term, unexpected unanimity. These commentators marveled at the number of cases in which liberal and conservative justices joined together to produce somewhat moderate decisions, framing it as a rebuke to predictions of a sharp rightward turn. But others were quick to point out the ways in which the Court’s decisions—especially those that came in a late flurry—were decidedly conservative, attacking voting rights, campaign finance laws, juvenile defendants, and unions. In other words, while the term wasn’t all bad, its handful of very bad decisions could not be treated as mere exceptions to an overall pattern of unanimity. Even where the justices did concur, moreover, it was to be wondered what might have been sacrificed for the sake of consensus.

More here.