It's important to distinguish originalism as a theory and originalism in practice. As a theory, it is neither conservative, nor liberal. It all depends on those who framed the provisions in question. If they were racist, then originalist interpretations will lead to racist law /1

OTOH, if the framers were liberal, originalist interpretations will lead to liberal law. Imagine the ERA is past as a constitutional amendment. If later generations are less favorable to women's rights, then originalism will lead to more favorable decisions to woman's rights. /2

Everything I say here goes for textualism as well. Bostock is an example of a textualist decision that came out with a liberal result. I should also point out that there are liberal originalists as well. /3

Is originalism bad in practice? It's complicated because I think the current Court is filled with originalists who are also crackpots. I wouldn't call them racist or homophobes, but they hold views that I do not share and find extreme. /4

There is a sense in which originalism does lead to bad results in practice. Originalism holds itself out as neutral--just figuring out the historical facts (or original public meaning). By donning the mantle of neutrality, originalist crackpots are able to claim that their /5

decisions are neutral. It is hard to tell--unless you are an expert in the particular historical episodes in question--whether the decisions are result oriented or not. And that gives extremists cover to make extremist decisions. "Sorry, my hands are tied" when they aren't. /6

I am not an originalist. I don't think the arguments used to make the case in fact work. But my objection to the current stacking of the Court has nothing to do with Originalism. It has to do with rank hypocrisy on the part of Republicans that destroys any idea of fair play /7

Democrats need to undo this outrage. The Supreme Court has become the Supreme Court of the Republican Party. It may demand our obedience but it does not deserve our respect. /fin