Abstract
As the conservative-dominated Supreme Court continues to accrue its power, commentators on both the political right and left suggest that those pursuing progressive policy goals would do well to turn to originalist methodology. Many of the Justices on the Court purport to be originalists, and progressive originalist arguments are more likely to appeal to this otherwise tough crowd. Haven’t progressives heard that we’re all originalists now? I argue that originalism’s appeal to progressives is largely illusory. Originalism is unlikely to make a difference before a Court controlled by a supermajority of conservative Justices who exercise discretion over the interpretive methodology employed in any given case. In instances where progressive originalism contradicts the Justices’ preferred outcomes the Justices can (and do) use methods other than originalism to reach those outcomes. Originalism is also far from a guarantee of success for progressives, given the existence of plenty of sordid historical laws, practices, and traditions. Originalism isn’t entirely useless. It makes for effective advocacy, and originalist work can give ammunition to those hoping to argue before the Court using the Court’s own language. Originalist arguments by advocates may give cover for progressive results in those instances where the Court is inclined to do so. Still, progressives must remain aware of the limited benefits originalism has to offer. With these limitations in mind, progressives are likely better off advancing their policy goals in alternate forums.
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Recommended Citation
Michael Smith,
The False Promise of Progressive Originalism,
56
N.M. L. Rev.
1
(2026).
Available at:
https://digitalrepository.unm.edu/nmlr/vol56/iss1/2
