Exploring originalism and criminal justice at this SCOTUS moment

Cristian Farias has this terrific new essay at Inquest titled “Playing with Originalism: Should advocates looking to unwind our nation’s punitive excesses engage a Supreme Court that set them in motion?”. This essay covers a lot of topics and ideas I have been thinking about lately, and topics and ideas at the untersection of originalism and criminal justice that I think merit a lot more attention. I recommend the piece in full, and here are just a few snippets:

In [certain] justices’ vision, text, history, and tradition rule the day, and every manner of law and policy must yield to it.  In this reality, could progressive originalism, as it were, be a tool for justice?…  The current Founding-era fervor among the justices, the thinking goes, could only set things back, since originalist rulings — on abortion, guns, the death penalty, and so much else — have reliably favored unpopular policy positions that conservatives welcome.  One former public defender turned seasoned advocate told me that, at this time, getting issues he cares about in front of the Court is simply a nonstarter: “My job is to keep cases away from the Supreme Court.”

But not everyone is on the same page.  Some advocates simply don’t have the luxury of not pursuing every available legal recourse for clients facing the loss of liberty or worse. If that means a long-shot Supreme Court appeal parsing what words meant nearly 250 years ago, they’ll go for it.  And they’re not the only ones on the broad progressive spectrum willing to engage with originalism on its own terms. A school of progressive legal thought constitutional scholar Jack Balkin calls “living originalism” maintains that the slaveholding Framers purposely left room in the written Constitution for newfangled protections for civil rights, the environment, and other causes that progressives hold dear.  Justice Ketanji Brown Jackson has been known to embrace arguments along these lines, leaving many to wonder if her appointment to the Supreme Court means some version of progressive originalism is here to stay….

Federal public defenders are among those thinking most seriously about how to craft arguments suited to the Supreme Court we have now. In the wake of New York State Rifle & Pistol Association v. Bruen, which in 2022 ruled that judges must in effect use originalism to assess firearm restrictions under the Second Amendment, federal defenders have been at the forefront of challenging a broad array of criminal prohibitions on gun possession….

And in areas where neither originalism nor any other sensible mode of constitutional interpretation guided the justices’ work in decades past, as in those cases [Rachel] Barkow has identified [in her new forthcoming book], the sky may well be the limit.  “I think there’s space for advocates to push the court, and I think they should,” Barkow said.