1. Federal court litigator here. “Originalism” isn’t a legitimate judicial philosophy, its just cover for a different set of policy preferences. Most of those policy preferences are deeply unpopular.

2. Example: the constitution limits court jurisdiction to “cases and controversies.” From these three words, the courts have developed the doctrine of “standing”—which says that a person has to have a sufficient stake in the dispute in order to litigate it.

3. Not necessarily a bad rule. The problem is that “originalist” judges keep moving the goal posts, adding new hurdles, making it harder for people to protect their rights. And none of these new rules are justified by any kind of originalist backstop.

4. In Lujan v. Defenders of Wildlife, for example, Justice Scalia held for the Court that a wildlife protection group didn’t have standing—i.e. sufficient stake in the dispute--to challenge a federal regulation that would have harmed wildlife in other countries.

5. The plaintiffs had demonstrated that they would be injured by the unlawful rule because, for example, they enjoyed travelling overseas to observe and photograph wildlife like elephants. And they intended to continue doing so in the future.

6. Not good enough, ruled the Court. Plaintiffs didn’t have concrete plans to travel to these countries again. No airplane ticket, no hotels booked. Vague intentions didn’t establish sufficient injury. So the plaintiffs never got their day in court to challenge the rule.

7. How is this in any respect originalist? The framers thought you needed a plane ticket to Sri Lanka before challenging an unlawful rule? Standing isn’t even in the constitution. Its judge-made law, reflecting a policy preference to limit access to courts.

8. The issue is particularly sticky in climate litigation. Some courts have rejected plaintiffs on standing grounds because they are not injured in a way that is different from other people. That’s because climate change impacts everyone.

9. If that becomes the default rule, then no one can ever challenge federal rules, policies or actions based on climate impacts because no one has a sufficient stake in the outcome.

10. Not only is that completely nuts, its judge-made law based on a policy preference – keeping citizens out of court to enforce the law – rather than the intent of the framers. Let’s call it what it is. [end]