@robertstadler.bsky.social: That's fair for SCOTUS, but then lower courts are obliged to apply the new precedents in some sort of sensible way. Lower courts are required to take originalism seriously, no matter how little it deserves that respect.

The court's new hyper-literal originalism is producing a weird jurisprudence in which some cases turn on two competing, highly subjective, highly-distilled, multi-century historical narratives. The narrative that gets 5 votes then becomes "Official U.S. History" for every similar case that follows.

Amy Coney Barrett Sounds Fed Up With Clarence Thomas’ Sloppy Originalismslate.com In a trademark case, Barrett agreed with Thomas’ bottom line but sharply disagreed with pretty much everything else.

Originalism has never been anything but a fig leaf, and it distresses me every time I see somebody take it seriously rather than treating it as such

That's fair for SCOTUS, but then lower courts are obliged to apply the new precedents in some sort of sensible way. Lower courts are required to take originalism seriously, no matter how little it deserves that respect.

Oh, I know they're bound by the Supreme Court, but they shouldn't treat originalism as anything approaching a consistent school of thought

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