What Is Originalism? | Interview: Sherif Girgis

You ready? I was born ready. ♪ Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. Happy OT 2026, everyone. The new term of the Supreme Court has officially started. We even had our first order. If you go to the Supreme Court's website, it's so fresh. There's just one little order for OT 26. And it was 42 pages of cert denials. We'll highlight some of the best, I mean, the saddest cert denials, as well as the cert grants that we got. And we have got Professor Sharif Gehrges with us to break down all things. Justice Samuel Alito as his new book comes out and the news that had nothing to do with the book. Let's go. ♪ Okay, David. Right off the bat, we did have the orders from the long conference. I just wanted to highlight some of the cases that did not get granted. Number one, you're going to be sad about this one. This was a challenge to prune yard. That first amendment case from the 1980s that you hate about whether a mall proprietor can refuse to allow someone to pamphlet on their private property if they don't agree with the message. So this is California's rule requiring shopping centers to permit expressive activity denied. The let's go brand in case. Sarah, don't say this. Don't tell me this. Why are you the bearer? You come back from being gone and you just dump bad news on me. Whether the court should overrule Jones versus United States and hold that the fourth amendment requires a witness with firsthand knowledge to swear an oath before a warrant can issue denied. I will tell you the one piece of good news is that the Maryland case about race neutral admissions criteria that were made for non-race neutral reasons hasn't been decided yet. That is up for conference. It's first conference next week. I would assume, even if it gets denied, that it will get held over for a couple conferences. So we're probably like a month away from hearing about that one. So that's the only good news is that you didn't get everything you wanted denied just the vast majority. But we do have some certain grants, David, that I thought I would run through with you. Obviously, we'll talk about them more as they actually get argued. One is on illegal aliens who are detained in the interior of the United States and whether they are entitled to bond. In particular, the Justice Department had asked for one case like this to be granted. It involved like 11 people, sort of a varying legal stuff. Instead, the Supreme Court granted a specific person's case. He had been unlawfully in the interior of the United States since 2004 or 2005 and was detained held without bond. And so that is one of the cases that the Supreme Court will hear. But David, this is the one I thought you'd be really into. Missionaries of St. John the Baptist versus Frederick. This is a Reluba case. I mean, pretty exciting stuff, right? So this is the idea that Congress enacted Reluba in 2000 to expand religious freedom protections for prisoners and religious organizations or individuals challenging zoning laws. Here, the church acquired some property next door to it. Wanted to build a shrine to the Virgin Mary. And long story short, the zoning board and the Kentucky Supreme Court was like, no, thank you. You can build a smaller version of your shrine on a different part of your property. The property that you bought was for residential use. And you can't just like build a shrine on residential use because a neighbor complained and thought it would cause traffic. David, this is a really interesting case to me because on the one hand, zoning laws don't mean much. If you can say something's for residential zoning unless you're a church. Right. On the other hand, as the petition pointed out, there were exceptions for like golf courses, but there weren't exceptions for churches, but the churches weren't treated like there were other places treated like the churches. So exactly what does Reluba mean? How much of a thumb on the scale? Is it. Those are those cases, I think, are super interesting because the immigration detention case involves really two statutes, one that very explicitly, if you are brought into. If you're coming into seeking admission to the country, you're going to need. It's going to allow detention and it doesn't say anything about bond. And then there's another provision that talks about a person who's being detained, being able to get bond. And these are very similarly drafted statutory provisions have generally been interpreted to allow bond if you've been captured in the interior. But if you're walking into the country, there isn't bond. And so, you know, it'll be interesting to see how broadly this goes, but the court really doesn't look like they're going to be answering the bigger issue, which is how long can you be detained when you are. Have not been even. You're being detained before potential expulsion from the country, but you haven't been accused of a crime. You're not being adjudicated for criminal misconduct and yet you're detained anyway. I don't think that we're going to really get into that, but we're going to get into the much more granular issue. That's interesting. And then, Sarah, I'm with you on the Relupa case. One day, I would love to see a perfect case teed up, where there have been no sort of exceptions granted and no sort of quirks where you really are looking at, okay? We've been really rigorous all the time that residential zoning is for residential zoning, and you've come in and you want the exception for the religious use, and that's it, as opposed to some of the more. You know, it always seems to be more messy than that. And you can always sort of punt the conflict, punt resolving the conflict, because you can point to an inconsistency, and the inconsistency resolves the case, not the inherent conflict, if that makes sense. Totally, we also have a divorce case that was granted. Which we've never discussed divorce cases on this podcast. Nor will we, again. But David, there was a case from the interim docket that was granted cert, actually. So the parties are directed to brief and argue the following questions. One, whether the district court had jurisdiction. Two, whether the district court had authority to enter declaratory relief, i.e., are they ignoring the cost of decision? Like we said, yeah, it shut the front door with nationwide injunctions, but like the back doors open, the window, the screens flapping, and even then it does appear that some district courts are like, yeah, but the front door was so convenient. Okay, and number three, whether the government's guidance on third-country removals is on lawful, under statute, the due process clause, another, the convention against torture, and it's implementing regulations. And four, and this one's interesting, David, such other questions that the government determines are appropriate for the proper disposition of this case. So this is a third party removal case, as in you generally in these cases, I will generalize your David. Someone has been convicted of a crime, usually a pretty gross one. And the country that they were here illegally from is like, no, we don't want the child-ravest murderer coming back to our country. We can't force that country to take this person back. We can't just like air drop them with a parachute into the country. And if that country won't take them back, we're stuck with them. And so then you look for other countries, not the country the person came from, that are maybe willing to do it for money, for instance, or maybe they're getting foreign aid from the United States. These generally are not countries that you want to live in. And so the question is about the administration's third country, third party, third country removal policies. The clerk is directed to establish a briefing schedule that will allow the case to be argued in the December 2026 argument session, justices Sotomayor, Kagan, and Jackson would deny the application for a stay. So in the meantime, the third party country removal policy goes back into effect. But David, I mean, lots of people were talking about like, we haven't really seen that for such other questions that the government determines are appropriate for the proper disposition of the case. This is an interim docket special, right? Because this didn't come up through the cert process, and it wasn't fully briefed, the court is basically like, Okay, we're gonna set this for all. or a argument, even though it's on the interim docket, that's what all of you people want, right? But we don't even quite know all the QPs we might need because this hasn't been fully briefed. So it'll be interesting to see how this goes. It feels like a bit of an experiment coming off of the emergency docket, part of the emergency docket, in that we've got four QPs, they're all big, right? - I know they're all big. - With a district court had jurisdiction, whether Kasa is being followed or whether this was a nationwide injunction that they said they couldn't do, whether the policy is unlawful, and also anything else that we didn't think of that might be important because there's been so many of these cases that keep coming up on the interim docket and they are sick of it. - Yeah. - So big one. - I'm so interested in how this works out. Ellie and I talked about this just barely brushed up against it because the order was very fresh. And we were both somewhat stumped by quite QP4 and I think you gave the best explanation for it that, well, this is also preliminary, maybe there's something we missed. It's not necessarily saying whatever the government wants to bring before us. It's up to the court to decide is this necessary for the disposition of the case, but it implicates nationwide injunctions, it implicates the class wide relief workaround for nationwide injunctions by bringing up treaties. It implicates the impact of treaty law on domestic American actions. I mean, it's a, this is a big one and I feel like we're kind of sleeping, I feel like in the public discussion, people are kind of sleeping on it, but the more I look at it, the bigger I think this is. - It's a big case. I do not envy the lawyers who will need to prepare for this oral argument because they are basically gonna prepare for six different cases. Each one of those QPs could be its own case that you would have to prepare oral argument for. Number four has at least one or two components. So I'm gonna say preparing for this case for oral argument is preparing for six cases for oral argument, but it's worse because if they actually do get to all six issues, you've got to do them really quickly. And so you've got to be better than even if you had the full hour on any one of these issues. All right, David, shall we introduce our guest for today, professor Sharif Girgis of Notre Dame Law School. He clerked for Judge Tom Griffith on the DC Circuit, who is a friend of the pod and was on quite recently. And then he clerked for Justice Sam Alito. He is a friend of the pod, but we really need someone to be defense counsel for Justice Alito as his new book comes out so ordered. He has given long interviews, but more importantly, he wrote this op-ed in the Wall Street Journal about originalism and about his version of originalism. And you and I need to go through it. I mean, nearly line by line. Totally, totally. And we're gonna agree with some stuff. We're gonna disagree with some stuff, but we're gonna be so happy he wrote it because it really is, he made points that are very much worth chewing on. And I'm very excited for this conversation. All right, let's get him on here. Joining us on the pod now is Harvard Law Professor. And frequent AO guest. Professor Sharif Gehrges, thank you for joining us. - Thanks for having me. I am Notre Dame Law Professor until January 1st. - Oh, okay, okay, sorry. - Credit where to do. - Still in South Bend for the football season. And then over to Cambridge. - Very strategic choice there, Sharif. Very strategic. - No, my priorities. - Okay, we have you here to talk about all things Justice Samuel Alito, including all the things that branch off of having a Justice Samuel Alito. But let's start where we're gonna start, which is the sort of hot news. On the one hand, I thought he'd be in the news because he has a new book coming out, so ordered. I don't know if you've had a chance to read it. It's a collection of speeches and essays that Justice Alito has written over the last many years. Trying to illuminate, I think, his judicial philosophy. I think it does a pretty good job of that. Although I gotta say, this Wall Street Journal op-ed that he published with the book maybe doesn't even better job than the book itself. I mean, it's great and I wanna get to that. But that is not the news hook of Justice Alito this week. It was his recusal off of the Sun Corps case. This case is being argued as we record this podcast. I listened to the first 20 minutes of it. We will cover it in depth on the next episode. And in our preview, David, I said that I thought this was by far the biggest case of the term. So to have a Justice recuse off of this case is a big deal, no matter what. Remember with St. Isador the case about whether Catholic charter schools could be charter schools, whether they are more like private schools or more like public schools. Justice Bear recused off that case. It divided for four. That means the lower court decision was affirmed. That could definitely happen in Sun Corps. But what's crazy about it to me, Professor, is that we'd already heard from Justice Alito. He already said he wasn't recusing off of this case. And then a week before the case is getting argued, JK, he recuses himself citing, we assume that his wife owns stock in some energy companies. My understanding is, A, the stock isn't worth that much, B, it was inherited and sort of like the flag issue. It's her stock, you can't make her sell it, but her stock can make him recuse himself off of cases. So with that two-lengthy intro, what do you make of this? Do you think it will change the outcome of this case? What happens now, blah? - It's a great question. I was very surprised. I was surprised partly because Justice Alito said, I think in an interview with some media outlet that he checked internally with whatever it was general counsel's office or the ethics person at the court. And they said that the recusal wasn't required. And it's a commonplace among the justices and maybe Justice Alito has said this also at some point that if recusal isn't required, it's probably a bad idea because you don't want to, there's so much room for gamesmanship and stuff when it comes to the justices where they can't be replaced and where it could make the difference to the outcome for the whole country. So I was surprised that he did. And the best sense I can make of it is that the explanation he gave in that interview is correct, which is honest, which is that the more he read into the case, the more he thought on balance, he really should. I think you're right about the actual cause. It's the stocks and the energy companies, but I can't think of another incentive you would have to recuse unless you really just thought in conscience that you had to under circumstances like these. - Or if the facts change to some degree between initial non-recusal and recusal. - That's true, that's true, he might have acquired new stocks, though I guess if it's the inherited stocks that's a constant set or a shrinking set. - There's been a bunch of speculation, did the other justices pressure him to do it because of it's a bad look? Did the outside pressure make any difference? I mean, I think everyone on this podcast has some sense of who Justice Alito is. It would seem to me that any effort to pressure him to recuse would backfire. So if anything, even from his colleagues, if you wanted him to recuse himself off this case, the thing you would do is not mention it at all. - Right, I don't think he would give into pressure, it's not his thing. But also, I think it would be unusual for the justice system to pressure each other on something like this. It feels like the kind of thing that's sort of, it's a truth, you don't want to be pressured by others on it. It's a very difficult set of issues. And so you wouldn't pressure others. That's my guess. So I really don't see any other explanation except the one that he gave. - Okay, let's get into Justice Alito's judicial philosophy as he explained it in this Wall Street Journal op-ed, as well as this long-ranging interview he did with Jen Crawford over at CBS, where he touched on everything. I mean, it was a multi-hour interview, all the things. I don't think there was anything really that was left off, but starting with the Wall Street Journal, I will read out loud. How should a judge interpret the constitution? I subscribed to the theory of originalism. The constitutional provisions should be understood to mean what the public would have taken them to mean when they were adopted. Years ago, speaking to a group of eager, young originalists, I was asked whether I considered myself a true adherent to their creed. I said I did, adding that I thought of myself as a practical originalist. On reflection, I think a better description might be working judicial originalist. A judge who strives to achieve originalist aims within the framework of our judicial system. I envision an originalist judge driving down a highway. Along the way, he sees seven off-ramps. Six of these are wrong turns, and the seventh places an originalist judge at a crucial crossroads. So maybe we can tick through the six bad off-ramps before we get to number seven. Number one is the one I am by far the most interested in and that I want to spend the most time on. I think it is this is where it is, right? This is the off-ramp. It is called insecure originalism. - I got problems with this one, so I cannot wait. to get started. - Reading again. Even though originalism has a strong intellectual foundation and has one important judicial respect, insecure originalists remain in what Professor Adrienne Vermeule has called a "defensive crouch." Where you're being charged with, quote, "results oriented decision making," they are allergic to any evaluation of results. That is a mistake. No neutral theory will produce a socially desirable result in every case. But unless originalism is widely viewed as generally producing good results, it is hard to see how it can survive as more than an academic curiosity. Professor, it cannot be a coincidence that Adrienne Vermeule gets name checked, right? This is the guy who does common good constitutionalism. So there's two ways to read this. One, Justice Alito is trying to move originalism over to common good constitutionalism or two, Justice Alito is trying to move common good constitutionalism into originalism. Which do you think it is? - Ah, that's a good question. So first let me back up and say, I generally dislike talking about my former bosses because it's like a known fact that clerics here worship their bosses. So you always sound like a shill. You're either shilling or disloyal. And it's especially bad in this case 'cause I believe the good things I'm gonna say and they won't be believed 'cause I'm a former clerk, but it's out of love for AO that I'm here. So would that acknowledge? - This is a safe space for you. - That's great. This is a safe space. - It's just us and your 100,000 listeners. - So first let me just say that the insecure originalism thing, when you zero in on it, the honest answer to your question is I don't know. But on the surface of it, it sounds totally unobjectionable in one way unless you read something into it or the vibe you get is a different one. So in its own terms it's just saying, just like you shouldn't have a thumb on the scale in favor of outcomes you like. You also shouldn't have a thumb on the scale against outcomes that you think would be good. You should just follow the law. And then he says later in the paragraph, sometimes following the law leads you to bad outcome and when it does that's your obligation. But you should think twice when that happens because after all the law came from people who were trying to do good stuff. So it might make you a more reliable originalist to at least check your work as he says when the outcome looks crazy. I think there will be some originalists who say no, I want a thumb on the scale against the outcomes that I like because that's the only way to correct for bias and get to the true legal source. And I can see the argument for both sides and another way to summarize both of them is just to say whenever the political stakes are high, you should proceed more carefully and be careful. I mean, now that version of the thing is completely anodyne and deflating a little bit. And he might just be saying looks sometimes in our anxiety about results oriented judging we go too far and subconsciously prefer outcomes we don't like. But I think almost every originalist could agree with the anodyne version of what I just said. I do think just go into your point and trying to get spicier. He, I think he does, he clearly, I mean, this is a vibe through the book and through all his opinions. He clearly thinks that originalism is less determinant than some of the other originalists too. And that's why he keeps talking about, you know, we need a dose of, we need, the discretion is inevitable and judging is like being an empire only in the sense that both of us have to exercise discretion and things aren't always bright line. And when you're just exercising discretion, that's kind of a vague term, but I think it's a natural thought to say, well, when you're trying to fill gaps or clarify ambiguity, you appeal to common sense other things equal unless you think that there's a reason to think that the authors of the law would go in against common sense. - So let me just sort of say my beef with this, which is I feel like and Sharif, we can just delegate you. It can be Samuel Alito's lawyer and then we just have dealt with all the clueless impersonation of him. - Oh yes, immediately. - Of course. - I can't actually do that offline, right? Keep going. - Okay, and I'm trying to find it, but not long ago, Justice Alito was in the Wall Street Journal and he was sort of decrying consequentialism and people who are diving too much into consequences. And here he seems to be kind of reversing course a bit. Like this part, where he of being charged with resort results oriented decision-making, they're allergic to any evaluation of results. That is a mistake. I mean, I agree with that, but then no neutral theory will produce a socially desirable result in every case, but unless originalism is widely viewed as generally producing good results, it is hard to see how it can survive as more than an academic curiosity. Okay, one of these things is not exactly like the other, because unless originalism is seeing, widely viewed as being generally producing good results, in whose eyes, in whose eyes, because a lot of the, I think the tribute to originalism has been that because it is very focused on the original public meaning and taking the original public meaning where it goes, that in many ways you're often more likely to perhaps, if you are upholding a statute, if you're upholding a constitutional provision that is contrary to your own view, that's not to say that it's the same thing as socially undesirable against common sense. It means that it's putting it often more into a realm in which there's a variety of views, of which the judges is only one, but once you start to move into that evaluation, and again, I agree that just sort of saying, well, treating yourself like I'm law bot 9,000, you just put in a set of facts, you produce a legal analysis, and let the chips fall where they may. Let's stipulate nobody wants that, nobody wants that. However, at the same time, I'm a little bit leery of the idea that if when I'm reading through, and I'm doing the work, and I'm following the steps, that when I get to, and a result, that I might not favor, say politically, or culturally, or religiously, that means I should now check my work, because I'm departing from common good, or common sense, or something socially desirable. That strikes me as sort of a one-way thumb on the scale, that essentially says, I'm double checking my work in one circumstance, when it reaches an outcome that I would not have preferred when we started. And that, as counsel for the defendant in this case, what say you? - Okay, so there's a version of the rule that he's giving the rule of thumb, that only makes sense if it's pegged, not to the judge's own personal views of what's desirable, but to some widespread sense of what's desirable. And that's the version that says, look, you're gonna actually more reliably track the original meaning if you check your work when it leads to a crazy outcome. It's kind of like the absurdity canon, when you're interpreting a statute. You don't read the statute to impose a result that's absurd by everybody's likes, because it's very unlikely that the particular people give you the law meant for that. And there's a version of that for constitutional law too. And I think in that version, everything that he says is consistent with everything you just said. And then there's a different version, which I think maybe he also means, which is, of course, you shouldn't try to get outcomes you personally favors the judge. But if you are extremely anxious about looking a political, you might end up veering in the opposite direction. And actually systematically favoring outcomes, you personally don't like. And if you find yourself in that predicament, you should correct for that. By asking yourself when you're reaching an outcome, you don't like, are you doing this just because you want to prove a point about originalism or are you doing this because this is where the law leads? - So I like your version of it. You're basically, you're underlining the word insecure. Insecure has very specific connotations. They're negative connotations. - It's not a good thing. And to your point, it's this idea of wanting to prove your critics wrong. I think another version would maybe don't hate me originalism. Like, look, I did this thing that is against what, you think someone like me would want, but it's like the title insecure originalism makes perfect sense to me and I'm all on board. The explanation for insecure originalism sounds a little different to me and it's that Vermeule name check, which again, I think there's a, I asked you that question in the beginning. Is he moving to Vermeulers? He's trying to co-opt Vermeule? I'll tell you my own read is that he's trying to co-opt, right? He sees common good constitutionalism as a threat from the right to originalism and as one of the most conservative, right-leaning judges, it is kind of his job to prevent that threat from the flank. And so you co-opt them like an amoeba, like you're next to them and so you absorb them into you rather than have them continuing to like fight and like eat off little pieces of your amoeba cell. But I think David highlights something that I want to put in slightly different terms. For the same reason that I think, Understandably, people criticize someone like the chief justice for his institutionalism, right? This idea that yeah, yeah, you follow the law, but at the moment you like are really in an ambiguous situation, it is okay to think about the court's credibility and legitimacy in the institution as a whole. There are those who say that's just wrong, right? That shouldn't be one of the considerations. I totally understand that criticism. This feels like the same thing, but kind of even weirder and more narrow because it's like, yeah, yeah, follow the law, follow the law. Okay, we're in the same big US world. If it's ambiguous and it comes out a way that you think is bad for originalism, originalism won't survive unless it has socially desirable outcomes, therefore come up with the socially desirable outcome. Isn't that just institutionalism, but for originalism rather than for the court? Yes, and so it depends on exactly what that one line meant, because I remember thinking also that that line feels different from the rest of the two paragraphs. So if we're just trying to protect originalism, that line is not as a prescription, but as a description. As I look, if you get all excited every time originalism leads to something absurd, then you better realize that that's going to hurt originalism in the long run. You think you're doing something good for originalism by coming out the other way, but in the mindset of trying to save originalism by proving it has bad outcomes, your own purposes might be undermined by your, by your tap. I like that explanation. The double checking when it comes out in a way that you think is socially bad, and by the way here, I think we're, I don't want to confuse people, we're using socially to mean in that global sense, right? Like eating children is socially bad. Not in the, not in the popularity sense. Yeah. Not in this will make me less popular sense, but yeah, or political or anything else. Sort of in that very high level term of social desirability. You know, if it leads to a socially non-desirable result, you double check your work. If it's socially desirable, no need to double check. This reminds me so much of my high school math teacher, and I think I've told this story before. I did my homework with my best friend. I got D's and F's, she got A's, and I got really mad and I went up to the teacher and was like, I don't understand, we have the same answers. And she said, yeah, but her handwriting is good. And it was basically like, when you have the handwriting of a 13 year old serial killer, you get double checked. And they're more likely to find your mistakes when they double check your work than they are when you have pretty, pretty perfect lady of Shalotte handwriting, like my bestie did. And so she got the A and like, either you should always double check and maybe David's point, if it is political, right, but politically good or bad or whatever, just it's a highly charged case, maybe you should always check your work. And by the way, I think they are in all of these cases, right, they don't have that many cases. They're checking everything. But the idea of a prescriptive definition of originalism, where you check your work if you don't like the outcome, but if you like the outcome, all steam ahead, that seems like a problem too. I agree. I think you should check in any politically charged case for the symmetric reasons and at the mirror image reasons, and I guess this is why I think this paragraph sounds to me like it's directed at a particular problem that he thinks is a reason locally, like to my brother and sister originalists, when you find yourself in this corner, you should find your way out. He's sick of the bragging about the criminal justice cases, basically. Well, and also I also think there's something else going on here, and I don't like the word insecure, and I'll tell you why. And Sheree, we're going to move on to better stuff about Justice Alito quickly. So just to hang with us here as attorney for the defendant, that there is this kind of popular way of speaking on the right that is sort of along the lines of, if you disagree with me, it's because you lack a certain degree of courage. And that if you really, truly were genuinely conservative, you would go along, you would be one of us. And every time you rule in a way that's different from me or in a way, and I'm not talking about Alito, this is sort of a broad sort of, and I'm sure you've seen this online, they lacked the courage. They didn't have what it took. And that becomes, it's almost a trope on part of the right at this point that anyone who disagrees with them is only because of the cocktail parties or they want to be seen. If only Mike Pence had the courage, it's only Mike Pence had the courage, right? And that paragraph, it's not text, well, to extent that insecure, but it's subtext that you guys are doing something where I think you're motivated by the gaze of the other as opposed to being motivated by the words on the page. And I feel like that's a absolute subtext there. And it's consistent with another thing that that's how you harmonize this with his other sort of Wall Street Journalist statement some time ago about kind of casting shade on those who worry about consequences. And I wonder if the way you square the circle is the consequences that he was decrying was the negative attention of much of the media, or you name it. But this worried me that he's kind of buying that a little bit. And I just reject that as a frame around some of the debates and discussions on the right. It's not about who has more or less courage. It's about legitimate differences in how we read or interpret the Constitution. Okay. So that's my concern. To answer that, I think we need to get to what he mentioned in the intro, which is that he actually considers himself a working judicial originalist, which kind of contradicts a bunch of what you're saying, David. So let's, we've talked about the first off ramp. Yeah. The second off ramp, show it to me in black and white originalism. This is also one of those off ramps you shouldn't take according to Justice Alito. I think we're all going to be in very quick agreement here. An originalist judge must always start with the text of the Constitution and be wary about going beyond it. But there are times when an important originalist principle isn't set out explicitly, but emerges from the Constitution's structure. And what I love about this op-ed, by the way, is for the people like us. He has case citations. So it's not just like vague words. He's like, no, no, no, I'm going to call out, I'm going to call out my friends. I'm going to call out my opponents, whatever. And so here, he cites Prince versus United States. This is a Scalia opinion from 1997 and his own opinion in Murphy versus National Collegiate Athletic Association. And by the way, he cites the presidential immunity decision Trump versus United States, talking about the structural constitution, again, you can agree or disagree with the outcome of any of those cases, looking at you, David, on immunity. But I think we agree with the underlying premise that just because it's not in the text doesn't mean you can't also look at the structure and sort of design of the Constitution for the outcome of cases under an originalist framework. Everyone in agreement, say amen? Yeah. Yeah, absolutely. The structural constitutionalism, although we're exaggerating when we say it's not in the text. I mean, the text creates the whole structure, but yeah, yeah, in agreement. Okay. So we're not taking that off-ramp. The show it to me in the black and white originalism. Next, next bad dangerous off-ramp. I carry an originalism. Like the boy in the Greek mythology who flew too close to the sun, originalists sometimes lose sight of what constitutional text would have meant to ordinary people when those provisions were adopted. Instead, they assume that those provisions embody broad, abstract principles which justify results that would have astonished the lawmakers who ratify them. What's the case for that one? Ooh, that would be Obergefell. This is the gay marriage case from 2015. And he says, "The due process clause of the 14th Amendment provides that no person may be deprived of, quote, liberty without due process." For an originalist, the question presented in Obergefell was whether the term "liberty" was understood to include the right to legal recognition of a same-sex marriage. It is impossible to maintain that the general public or lawmakers in 1868 understood the amendment as requiring states to recognize such unions. Yet, that's what the brief argued. Again, I think we actually all totally agree with this except at what level of abstraction are we talking? This is the text history and tradition problem that he calls Icarian originalism. Makes it sound really great, right? Of course, you can't go too high or else the Constitution is just like, "Do nice things and. " It will melt your wings. That's right. "Be good to one another." No, obviously, the Constitution is more concrete than that. But how concrete? He mentions Kylo and some of these fourth amendment cases, so he knows the problem. But I felt like this is like, "Yeah, I guess we all agree, except when we get the actual facts of a case, in which case we're back to having to define it." I agree that the devil is all in the details. And the question is basically, "Okay, I get that too much is too much, but how much is too much?" How close to the sun can I get? Yeah. What level of the stratosphere? And I think he gives two different answers to that or it's possible to read two different answers to that. So first, he says something that makes it sound like if they didn't expect the application you're about to adopt, then you're doing it wrong. And that's the way he seems to describe you, Bergfeldt. I don't so much agree with that reading because I think it could be that they anticipated that they would that there would be applications that they didn't anticipate or that they might not have agreed with and the known unknown as the known unknowns. Yeah, God bless. God bless to Saul. But then he sides with the thing I'm pointing to in the second gloss that he gives where he says, look, the question is how much discretion to future interpreters do we think the authors of the provision intended to give them? And so it's actually a historical question, what level of generality? Basically, whatever level they all thought they were picking. Now, it's an open question whether that's ever going to give you concrete guidance because if the text is the main thing we've got and maybe very conflicting ratifying debates, it's going to be hard to say that they all agreed on a particular level or even hard to report it and hard to use it as a guide. But I like the theory behind that second view. You know, just sort of going and looking at the op-ed globally. And this goes back to something Sarah said at the beginning, it's like it's showing that that originalism is not math. It's not a hyper precise process that's going to yield predictable uniform results if everyone is applying this magical thing called originalism. And I think that that is a very, very, very important message to get out into the public. And sure, if you know, as well as anybody, better than I do, that I don't think that academic originalists or even your most thoughtful judicial originalists would have ever said that originalism is a pure science, that that would be to it be a straw man to say that originalists have been sort of presenting the public that it's a pure science. But I do think that the impression kind of settled in on maybe a lot a large part of the originalism sympathetic community that somehow originalism was moving us closer to that model. And almost that there is just going to be the proper originalist answer period end of discussion in any given case. And I think what Alito is saying you're in a global level is there's lots to debate within originalism. And I'm in that debate and making claims in that debate. And I think that's a pretty significant public service at trying to help people understand that no, it's a school of thought. It is not an outcome generation machine. And I think originalists have to be honest that this is a change and a disappointment to the founders, the modern founders of movement. So, Bork and Scalia, yeah, they recognize their limits to a Scalia defended it only as the lesser evil famously. But they definitely promised that it would tie judges hands more than the alternatives. And that was their main selling point for it. It was tying judges hands and tying them not just by anything coin flips or whatever, but by something that feels authoritative, which is the founding. And Justice Barrett has said, well, you know, we shouldn't exaggerate that. Actually, that's not the best argument for originalism. The best argument is just this is how you interpret this kind of legal instrument to be faithful to the legal instrument. And maybe that's broad discretion. And maybe it's narrow. And maybe it depends on the provision. But I do think we have to admit that the movement promised something that the method has not been able to fully deliver. And that might not be fatal. I don't think it is fatal. But it's a, it's a real realization. And it's not a surprise that this becomes more evident as originalism moves from the dissenting philosophy to the governing philosophy. That's kind of point that several people have made now, which is just once you are in charge, you get, you can't just pick and choose which shots you're going to take. You have to have an answer to everything. And sometimes your theory's going to come up short in that effort, like any theory would. And so that's, it's not surprising that this becomes more apparent, the more the theory is developed and applied. Let me, let me flip one more thing about that quickly by you. I feel like the originalism did debate as so many things are was influenced by an abortion distortion. And by that, I meant that there just was never a coherent originalist case for row. Like, you know, whether it's good originalism, bad originalism, a kilamar's liberal originalism, whatever, whatever you wanted to put under the blanket of originalism. That philosophy was going to be fatal to row. That that was the one thing everyone could be under the banner and realize that this is, this is, row cannot survive when originalism exists. However, that there's not many situations like that in the law where you have such an aggressive precedent in 1973. You had Justice Ruth Bader Ginsburg before she was Justice Ruth Bader Ginsburg saying it's breathtaking. So it's so aggressive and it's both aggressive and so culturally and politically important that I feel like originalism just got evaluated through the row lens in a lot of ways. And now that we're by both sides. And now that we're past row, popularly nobody knows what originalism needs to do. I think that's totally right. I had reasons to look at the at Bork and Scalia writings about a year ago. And I was shocked by how much they were about substantive due process rights and row in particular. Griswald a little bit and then row. And I was surprised because today, you think of it as a general theory about structure and rights and not just the unenumerated rights with enumerated ones too. And it was against that backdrop just striking how much it was one pocket of the rights cases that drove the rhetoric and the examples in the arguments for originalism. All right, let's take a break there. When we get back, we have got more off-ramps with construction signs all around them to go. We'll be right back. I think life insurance is unusual because the best case scenario is that you never personally see the benefit of having it. The value is in what it could mean for the people around you if life takes a turn nobody plan for. 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Also a fourth amendment case. Also about this idea of searches, whereas Kylo was on infrared technology used to search homes. Jones is about GPS devices on the back of vehicles used to track this one vehicle for like 30 days. This is the famous tiny constable case where still is like I know if there was a tiny constable on your car like that would obviously be a trespass. And basically Alito is going to dismantle that and say like look you were taking this idea of trespass to chattel totally out of context. There had to be damages back then. Yada yada yada. You're getting two into the weeds, finding these historical twins, so to speak, and applying them, but Professor, I guess my problem with this one is the Rahimi. Well, it's all the second amendment cases, actually, which is, yeah, but boy, they sure do keep looking, like, demanding these historical twins when it comes to the second amendment, in particular, the Wolford case out of Hawaii about property rights and the second amendment, and when, you know, you could deny someone the ability to enter property. Um, I don't know, man, the second amendment, I carry in versus archaeological, I don't think it's helpful to me at all in either deciding the cases or even predicting their outcomes. There's a version of the archaeological originals and thing that I think is hard to deny and actually creates interesting resonances with, like, people at Justice Fair, for example, which is, you know, you can't say, I, you know, we rifled through James Madison's Diaries, and there's a page that had been torn out, and now we found it, and we use AI to read it, and it turns out, therefore, something, something fourth amendment. And that seems totally right, and it just falls straightforwardly out of the idea that it's the original public meaning that you're, or the original law or whatever, it's an original something that's been promulcated or that's visible to the public that is the touchstone. Fine. Then you point out, I think rightly, and the reason that resonates with Justice Fair is that she said things like, look, just because something's old and and dusty doesn't mean that it has authority for an originalist, it needs to actually tie to the original understanding of the text. Then things get a little trickier, I agree, with something like the second amendment where they say, okay, well, the original meaning was a right that was limited by a set of principles, and the best evidence of the principles is early practices, and those are like longstanding gun regulations. That's an archaeological dig. It can be archaeological in if, for example, the regulations are pretty spotty and rare, or if, you know, they were, they were salient to some local community in Kentucky, but they weren't to the nation. And, you know, officially, they're looking for patterns in the regulations, so they're trying to get away from that super narrow one-off type of touchstone. But it's a serious question, exactly how tied those practices were to the public, kind of, saying the text that they adopted. I'm not a particular fan of Bruin, so I'm happy to throw Bruin under the bus or off the ramp or into a ditch off the shoulder of the ramp of archaeological originalism, something like that. This is the part of the op-ed that as much as I hated the insecure originalism discussion, that's how much I loved this one, that the, I don't like archaeological originalism as I have made, like, very clear in the text history and tradition debate, and I found this very welcome to hear him walk through this, and was, and I agree with this part entirely. I mean, I do have some questions that Sarah had about the Second Amendment cases, but it's also he was not in, he was not with Thomas and Rahimi. So, you know, if you go Bruin to Rahimi, he is much less than the archaeological originalism camp in Rahimi, and then if you look at that, then that recast Bruin a bit, and it recas, as apparently the majority intended, was to recast Bruin as more general than particular. And Thomas, who of course wrote Bruin, is going, "No, I know what it meant." But he as happens on every now and then the cheese stood alone at that point, but I feel like if you're looking at that, and then adding in this op-ed, okay, he seems to be much less on the archaeological originalism side of the aisle, then it might have appeared initially with Bruin. Okay, next off ramp, partial originalism. This occurs when an originalist rule is combined with a non-originalist one, and the decision is presented as originalist. An example is Collins versus Virginia from 2018, Ryan Collins had covered a motorcycle with a tarp, and parked in the driveway of a house that belonged to a woman with whom he was spending the night. Oh, just Toledo. A police officer had probably caused to believe that the motorcycle was stolen, and the Mr. Collins had driven it in an illegal high-speed chase. The officer checked and confirmed his suspicions. But the court held it because the officer entered the house's cartilage, property surrounding it that has the same constitutional protection as the house itself. He had committed what would be a trespass under common law, and therefore it needed a warrant. That would have been a sound originalist argument if the house belonged to Mr. Collins, but a common law, a mere guest, couldn't sue a person for trespassing on the host property. But the court relied on basically other cases. Minnesota versus Olsen, which held it an overnight guest, has a reasonable expectation of privacy in some of the else's own, and of course the exclusionary rule, the idea that if the police violate your Fourth Amendment rights, that evidence cannot be used to trial against you, also not in the Constitution. And so his point is, you can't stack things on non-originalist grounds. But again, I almost want to put a pin in this one to get to the working judge originalism, because he literally later says you can stack things on non-originalist grounds that are precedent of the court, particularly talking about the privileges and immunities clause. So I can't stack things on the exclusionary rule, but I can stack things on the slaughterhouse cases. You know what, maybe I've actually just set this up. So professor, why don't you tell me why you can stack sometimes, and you can't stack other times under this partial originalism? Gosh, I hate to shill, but. No, I want you to shill, that's why you're here. And I'm telling you where, you know, I did disagree with them at some point earlier. We know, we know. So I'll keep looking for chances. But in this case, I think here's the unifying threat. Yeah, a judge is supposed to be an originalist according to originalism, of course. But a judge's fundamental job is to cite cases and controversies. So if you put those together, the judge's fundamental obligation is to reach originalist outcomes. The question is not how much of the opinion sounds originalist, except to the extent that that's going to affect outcomes. So here he's saying, in the case you described, he's saying, we got to make 50% of the opinion sound originalist, which is all to the good. But because of the other 50% being combined with it, we reached a non-originalist outcome. When our main job is to reach originalist outcomes. And the opposite is true in the other setting, you're describing top. So with substantive due process, in general, I guess he was talking about McDonald there, the gun case, but the point applies across the board. He says, all the egg-headed originalists want us to switch from doing substantive due process under or unannumerated rights under an end incorporation of the Bill of Rights, under the due process clause to doing it under the privilege of its communities clause for the 14th Amendment. Because as an original matter, that's where most people think it should be housed. I agree that as an original matter, that's the much more natural home. But he says, and then he says, we shouldn't do that because it would be too disruptive, starry to sizes, let's sleeping dogs lie, let's just keep going on the path that we're going. Now, I think there can be counterarguments to what he said there, and we can talk about them in a second. But we'll bring on a Thomas clerk for that. Yeah, I can do them. I can take multitudes. Okay, I can. But the way to reconcile it with the point about Collins is that in that case, one thing that he says in a footnote in DOBS is that, look, Justice Thomas wants to do an enumerator rights analysis under privileges or immunities, but it turns out it would be basically the same test under privileges or immunities, according to this case called Corpheal Free Corial. The question is whether the rights are basically deeply historically rooted, and that's our test under due process too. So the outcomes will be the same either way, which is why Justice Thomas can sign this opinion in good conscience even as he writes separately to say, here's how I wish it had been written. So if outcomes are the fundamental thing, and the question is, are you reaching originalist outcomes because your job is to decide cases and controversies, then mushing originalist and non-originalist stuff together is bad when it leads you away from the originalist outcome, and it's okay when it, or at least less bad, when you still have the originalist outcome. Okay, that's been your least persuasive argument for me so far. Can I say why? What I think the counterargument to that would be? Yeah. The counterargument would be if it turns out that sticking to the wrong clause, for example, when it comes to incorporation and unimigrated rights, actually works further distortions. So if it turns out that it's not just like the same outcome. Like the exclusionary rule, by the way, like everything works further distortions. The more you travel down the wrong path, the more you're heading the wrong direction. Exactly. So it just comes down to the substance of the question case by case, which is, is it actually true that having the wrong reasoning or citing the wrong text at the beginning of the analysis leads us overall, maybe not in this particular case, but in other cases, to different outcomes, maybe if only by distorting what other provisions are doing. And when that's true, then I think this defense doesn't work. I feel like in the privileges and immunities versus due process context, we're basically the legal question tends to be something like, are we still on the same time zone? And yeah, privileges and immunities and due process as they have continued to diverge for a hundred years are still in the same time zone. But then in the exclusionary rule context because of the legal question there. It was more like, are we in the same county? Well, no. After whatever it's been 70 years of exclusionary rule, we're no longer in the same county as those two paths have diverged. But by the way, we are still in the same time zone. It's just that's not the legal question in the case. So the idea of stacking or on continuing on the wrong path, yeah, because it matters what case it is and what facts you're applying and it seems really weird to me to make an outcome determinative of whether it's okay to stay on the wrong path. It seems very non-elido. So I think it's true that if the different reason I realize now the highway is interstate. It's different time zones Trying to keep the metaphor. I think you're I think it's absolutely right that if the different reasoning leads to different outcomes even if not in this case, then it's a problem and then the question is just the usual startup analysis analysis. Like okay It's a problem. So start a slice this kicks in and do we have a good enough reason to get get away from the problem and and probably I would be more comfortable fixing problems than Is at least suggested by the op-ed by him. Okay, I guess I just like on the one hand It's sort of like this Chesterton's fence analysis with privileges and immunities. God only knows What can of worms that could open I agree and I am worried about that by the way I Sort of know the next step in our due process world and I don't know what would happen if we just rip off the privileges and immunities bandaid But I will tell you this I know that it will affect the outcome of some cases at some point So like the idea that like well wasn't case determinative in McDonald's like Okay, but what about all the other cases that it could have been that you didn't even grant cert on Because we didn't have privileges and immunities all the economic liberty cases that I J was bringing on horse dentistry and Needing a license to be a florist Yeah, so part of it depends really on whether that footnote in Dobbs is right about the test actually being the same Because if the test is the same about deeply rooted in our history or whatever Then we can expect outcomes not just in that case, but in other cases to be the same But I think on on the face of it the main difference that would happen if we switch from Your process to privileges or immunities is that there'd be now a serious argument that the rights at issue So any unannumerated right plus any bill of rights right applied against the state would only be enjoyed by citizens And I'm so glad you said that I was getting there No state shall make or enforce any law which will abridged the privileges or immunities of citizens of The United States nor any state shall deprive any person of life liberty or property So by its terms you could end up in a world where you had rights incorporated against citizens involving any state or local law But if it's a federal law It would still be incorporated against citizen if it was you're enforcing a federal law It'd be citizens and non-citizens alike Because the text of the fifth amendment the first amendment etc. Is not citizen-based Passing amendment dated originally was originalism Wow, that's interesting. That's interesting. I'm just I'm doing it Issue spotter Sarah. I'm doing an issue spotter. I'm totally joking. You're right. It's yes Okay, when we get back I will we've got Philosophical originalism academic originalism Working judge originalism. We've got more of these off-ramps to discuss. We'll be right back Hi, everyone. This is Amy how the co-founder of scotus blog the gold standard for independent insight and analysis of the Supreme Court I want to invite you to sign up for our recently launched scotus blog plus This gives you access to among other things our daily newsletter scotus today Extra deep dives on the court Live insight behind our coverage from the reporters and experts who are most familiar with the court Super interesting stats on the court you won't be able to get anywhere else and even text alerts on the latest decisions Orders and assignments from the justices as they're announced This also helps scotus blog to continue doing what it does each and every day You can sign up for scotus blog plus as a founding member for $199 a year at scotus blog.com forward slash join Or just visit our website at scotus blog.com and go to plus Thanks so much for listening. We appreciate your support Tammy regularly haul stuff to her kids at college. That's why she shops at bj's wholesale club saving up to 25% off grocery store prices Beef jerky microwave meals laundry pods even they can't screw up. Have you met my kid and with bj's gas she gets there for less They call me the road warrior. This is your home road warrior mom home of the save Join for just $20 at bj's.com slash mesquite and save 10 cents per gallon for six months open soon limited time offer new members only bj's home of the save On the road again Okay, let's keep driving guys Okay, we're back on the highway. We've got two more to go one Philosophical originalism. This is the theory that original meaning of the Constitution embodies the thinking of a particular philosopher High-addressed this mistake in my concurrence in full-in-versus city of Philadelphia I just emphasized that because many of us think that it was a majority opinion that was no longer a majority opinion In which I set out my understanding of the original meaning of the first amendments free exercise clause Some academic work on this subject had relied heavily on John Locke's writing about church and state I don't doubt that Locke's ideas were in the air when the first amendment was adopted But I rejected the notion that the free exercise clause contains a footnote reading C.J. Locke comma a letter concerning toleration parentheses 1689 First of all, just love that paragraph. It is some pure essay writing and I am all for that. I think this is a kind of an interesting one, though because the founders were Quite steeped in the same books. There were far fewer books available at the time. They were all reading the same I don't know. Do you want to like call it 15-20? We're not talking that many books that they all would have had in their library Jeff Rosen has done an excellent job writing about what these books were In his book pursuit of Happiness right he has pursuit of liberty and pursuit of happiness, and they're both excellent But pursuit of happiness is the one I'm talking about right now. I have to remember that And so like yeah the text doesn't have John Locke. So I get it But reading the same thing that all the founders would have read when they were adopting the first amendment doesn't seem Irrelevant to me either. Yeah, I don't know what to make of this either I think it's a deep Methodological question not just a historical question because any originalist reading the Constitution faces a choice for any given provision Do you read this as an ordinary meaning text or as a term of art? Because sometimes the yeah, it's the general public that's Participating the ratification. They're the sovereign But sometimes what they understand themselves to be adopting could be okay, whatever the experts mean by this And that's the term of art and if the experts are lawyers who also happen to be really really steeped in political theory and some of the same political theory Then it's not crazy to think that some background philosophy Should be used to apply the provision but how you decide that first step is this a term of art or not and is it the kind of term of art that Links up to some philosophy that was in the air I think it's a really hard question that I haven't seen great stuff on and I don't know what to think about You know, can I can I take a stab at this because there's I Okay, if I'm gonna rank these insecure originalism was the that was the part I liked the least Archaeological Originalism is the part of the op-ed I liked the most. This is the most interesting I feel like we finally got to like this is the thing because It really does get into intent meaning How those are blurry in the one hand in original intent is not really originalism original public meaning Is more originalism, but meaning to whom Because here's where I have beef with this And so I agree to some degree certainly about you can't cite just CJ Locke in large part because Madison goes further than Locke Madison thought Locke was Cramped that with that toleration wasn't enough You know if you read remonstrances Madison's remonstrances in 1785 he's gone further than Locke I look at Madison as the next evolutionary step beyond Locke so you can't go back to just Locke But that's micro that's a that's a just a on that one issue here's macro After dinner traveler I sometimes envision a scene at a colonial era tabern After dinner travelers and area residents gather around the fireplace and reduce papers that discuss the Bill of Rights They read the text to the First Amendment and see that it privates Congress for making any law that impairs the free exercise for religion What would they make of that language? I almost felt like jump I wanted to jump into that and say The founders would not have cared that much at all What the regular travelers and area residents thought about what it meant These are the guys who put together an electoral college that was going to be a committee meeting To decide who the president of the United States was that's how leery they were of popular sovereignty And so it's sort of the idea that That a judge again even further removed from the democratic process. There should be thinking Well, what should some dudes in 7. 1988 have thought about like the and it would have been dudes I guess that would it because the the women didn't vote What would they have thought about or couldn't vote what what they thought about about this? I don't think the founders would say that's their Test here like the regular folks and it gets brief to your point You know, you're making earlier like wait a minute. Is this a term of art versus just something that's Just words on a page and so that that's struck me. Do we think that the founders would have said Yeah, I wonder what the folks of the tabern thought about this or would they have looked at that as a kind of popular Sovereignty that they were kind of trying to avoid with the whole bill of rights to begin with first of all women could vote in New Jersey until 1807 women could vote in some of the other colonies Their voting rights were taken away even before that. It was actually it's weird Women had more rights at the founding and then there was sort of this movement really kind of fascinating movement Stripping women of rights right after the founding that we don't spend a lot of time on so just Foot noting that there were moments actually in the time era that we're talking about where women could vote in some of these colonies But also I just want to add to this before you answer the problem that I have Which is yeah Sharif. Yeah, it's archeological originalism Combined with this philosophical originalism problem, which is Okay, we assume at the tavern they weren't all up on lock not even sure that's accurate but fine But then again you go back to brewing or some of these second amendment cases and we're citing like the 12 18 laws of whatever as it was applied. I promise you they didn't know about that. So Why is that relevant from the 13th century but John Locke wouldn't be and again I'm not saying that one that there isn't an argument to get rid of both But I find it weird to say that the 13th century Laws used by the king definitely everyone knew that we were importing that into the second amendment when we ratified it But no they had no idea about John Locke for the first amendment. Great. All right. So first I will as council Respond to David and then as Sharif. It's a hot bench as Sharif. I'll take I'll take my own position that partly sides with both of you. Okay Uh And against Justice Lee's point in this last part. So David what you were saying is well, how do we know that the founder? Do we really believe that the founders cared with people around the hearth or I forget where we are a pub thought And I agree with you. They probably Didn't but that Way of framing the rebuttal assumes that what matters is what the founders thought as opposed to what the people around the fire thought when Just so you might say well, that's the whole question here and if we're talking about public being and if the people are the sovereign They're the ones who ratified it then the founders just served up the thing that they decided on pro or con and so maybe we should go by the Understanding of the people who have the ultimate authority the ratifying public. Okay, but I agree with you Sarah that you can't really Square all of this if the question is like what if if our only touchstone is what people around the fire At the pub after a few drinks but not too many drinks new or believed or were aware of then we can't Help ourselves to the lawyerly materials that get cited in a lot of second amendment cases where like unless you had a west law Password you might not know what the contours of the right where so I think it's inevitable that there will be that the only way to make Sense of this stuff as law and to try to apply it with some determinant contours is to treat some of it as A term of art and the court actually talks in that way even in the same opinions where they say like in heller Scalia says well the second amendment is we you know is ordinary It it applies by its ordinary meaning he also says but it in trines a pre-existing right Which was given contours by a bunch of legal materials that That the dictionary definition would not have given you so there's this tension everywhere I think the only way to go with some of these provisions is to treat it as a term of art incorporating some legal material and then the whole Game is in figuring out what material and then how to read it and that's why we're getting into the messiness that a lot of the second amendment and Other cases have shown okay, so his last one and this remember is the seventh one where it's like well You can't take this off ramp, but you should be wary in this off ramp You know, it's like all the other off ramps have like the flags and cones you definitely can't go on them This one has more like a thereby dragon sign maybe above it, but like there's nothing blocking you from taking it So this is academic originalism here is the turning point he says for scholars. It is the right turn An originalist judge may in good conscience take the same off ramp But for me and many other originalist judges it isn't the preferred course and here he makes the point about Following down still the due process clause Versus the privileges and immunities clause that we discussed before And he says in a similar vein for instance a supreme court justice must also decide what to do when the court applies a prior decision from which he Decented he can stick to his guns and remain in descent or he can accept the earlier decision Stay in the conversation and try to steer the case toward the right path Both are honorable choices, but judging is practical work with real world consequences And it is done under conditions that may military against scholarly purity Originalism disciplines the decision making process, but it doesn't eliminate the need for judges to exercise judgment Originalist judging requires a degree of humility, but it also demands boldness to go with the original public meeting leads and self confidence in the face of hostile media and legal academy So originalism isn't easy, but if originalist judges stay on course. I am confident that the theory has a bright future Okay guys we got to the end of this very long op-ed from the Wall Street Journal and all seven off ramps By the way, I think that the practical originalism working judge originalism point at the end here And especially forget the privileges and immunities things because I actually think that's a little more in the weeds Than it needs to be his point on you've descended in the case now That's precedent so now you join the majority to try to steer where that precedent that road that you didn't want to take where that road may lead That is the perfect distillation of what to me practical originalism working judge originalism Should actually mean and on this one I am 100% on board the judges are different than academics and both can be good originalists in good standing And come out differently on something because of exactly that problem. I'm with you on that Sarah. I thought that that I liked this it requires a degree of humility it also demands boldness and self confidence in the face of a hostile media and legal academy I think all of that is correct. I think all of that is absolutely correct Look overall you know how much I like to see these guys talk and explain Where they're coming from so even though we picked apart some of it I'm glad he wrote all of it Because it gives us oh one of the best things from a Supreme Court justice in years in terms of really really Not like oh, I can't talk about cases. They may come in front of me. That's all true. I don't mean to make fun of it But here where he actually cites cases to highlight what he's referring to was so helpful And I would love to see a similar thing from Justice Kagan not in the Wall Street Journal in the New York Times For selfish reasons, but did did to see like what is what is her philosophy and And I think in a in a way that's digestible by you know the public that's interested in this And for the same reason that I keep going back and I share this example of a friend of mine non-lawyer friend of mine Who told me because he listens to the podcast he started listening to Supreme Court Oral arguments to be encouraged about America Because he saw intelligent people debating difficult issues in a civil Manor though with deep conviction and I feel like The more we're exposed to the actual thinking of these justices The more serious You will see that they are in other words You're you're gonna actually feel like okay. This is an actual real philosophical debate engaged by smart people in good faith And that is such a divergence from our normal political process So Shrief are you with us? We want do you want more of this? I love it. I love it He gave this first as a speech. I think maybe at school you law school or AEI somewhere like that It says it at the end of the hot that I can't remember the details And I remember thinking when I first read about the speech that it sounded like an unusually substantive speech for Adjustments in that kind of setting where usually they get asked you know does oral argument make a difference to your outcomes like you You know tell us about the handshake before and after oral argument and all that is great in part of civic education and is valuable But for for nerds and including podcasters if I may I think this stuff is is a lot more interesting You're right. This was from a 2025 lecture at George Mason's Antonin Scalia law school And it does appear as one of the essays in the book along with other essays that are quite similar You know, they're they're all sort of along this theme. They are substantive Working judge originalist essays. There's not a whole lot of the fluff before we let you go You now are allowed to take off your counsel for justice Alito hat Um what is the number one thing that you disagreed with your justice on at any point um and here I'm really looking less for legal things and more food takes movie takes etc Well, actually the first thing that comes to mind is the label thing. There was if we were in a case discussion a Topic in constitutional law that he cares a ton about came up and He some we were talking about different positions and the party positions and whatever and then someone said well Just as what do you actually think and he said well? I've thought long and hard about this for decades and I think Ultimately, I came down on and and this is a topic dear to my heart and ultimately I came down on the view that X And he said what do you all think and I immediately responded? Oh, I don't like that at all It just blurted out of me. I didn't mean it. It's not the way people talk in those settings and I felt kind of embarrassed after where my cochlear definitely felt embarrassed For me of me and I wrote to him afterwards and you know, I'm sorry by the way I put it and It's something you care a lot about. I didn't mean to disrespect the long deliberations you've had And he couldn't have been more gracious about it and said actually I really want to keep talking about this But you said you know after that first part sounded interesting and I bring that up because even though I'm sure we disagreed about food and other things that back and forth is a nice encapsulation of His in person demeanor, which is very different from his oral argument demeanor where he's Unusually humble not just for justice but for a human and Unusually generous and whatever the opposite of overbearing is underbearing in ways that you don't really see in the In the oral arguments you don't really see them in the speeches You see them a little bit in some of the interviews that are coming out now and you see a lot in chambers You know one thing that I have thought a lot about as to why is it that The judicial the court and the judicial System broadly are the last branch standing Compared to say congress and others is I feel like the and I've said this before in this podcast mom and dad are still a charge In other words, there is a mentoring process. There is a When you're young and as you're saying blurting things out You're not really running the place you're being shaped you're being molded so that by the time people are encountering the legal system in its manifestations The inmates are not running the asylum and in many ways I feel like in politics It can often be the work the reverse that we privilege the people who blurt The younger voices sometimes get privileged more than older voices sometimes you get the feeling that members of Congress are almost led by their staffs You know, hey look you're trending on Twitter boss Here's what you need to do to get more of that and that story You know how much of that clerk relationship really is a mentoring process How much does it shape you and you had to do more than one clerkship Before you land with Justice Alito and so to talk about the influence of that clerkship process on you more broadly Yeah, it's definitely huge. I mean, and this is well the part of the explanation of the point I started with them and the embarrassing way that you can always sound like you're shilling or just loyal and there's no middle ground about your boss is that it's a it's first of all they've given you an enormous opportunity At a point in your career where that almost always involves a gamble and In a way that opens up and shapes the direction of the rest of your career for your whole life So you owe them a ton, but it's not just that it shapes the relationship itself like you're saying You're seeing up close somebody who's way way more advanced and you're seeing their skills and learning from them But also their ideal the ideals of shape how they How they do their work and it's so it's in the conversations about the cases But it's also in just watching them how they deal with colleagues and challenge and outside Criticism and uncritical fans and uncritical enemies And so it makes a huge difference and it's really hard to disentangle What you would have been like without the clerkship from from where you are after it Professor Sharif Gehrges of Notre Dame for the next few months Thank you for joining us and Donning your SAA defense council hat you very much appreciate it Congrats to the Alito clerk family on your boss's book being out And happy ot 26 everyone. 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