The Originalism Industrial Complex: How Fringe Scholars Feed the Supreme Court’s Obsessions

The birthright citizenship case, in which a single vote nearly annulled a constitutional guarantee, has sparked heated debate about the role of “fringe academics” in shaping Supreme Court opinions. Mark Joseph Stern’s analysis in Amicus highlights how originalism, a supposedly rigorous legal doctrine, can be reduced to farce when scholars and politicians join forces to peddle dubious theories.

Originalist ideas often germinate among conservative scholars eager to make their mark on the law. These scholars churn out contested scholarship that can almost convince justices to adopt it. In recent cases involving the Federal Reserve’s independence, for instance, justices summoned scholars to provide a veneer of legitimacy. The nondelegation doctrine is another example where fringe ideas nearly convinced Justice Neil Gorsuch to adopt them, but ultimately, the court found an alternative route through the major questions doctrine.

The incentives facing younger scholars play a significant role in this phenomenon. They are tempted by the promise of making a name for themselves, securing better appointments, or gaining tenure by embracing contentious theories and receiving citations from Supreme Court justices. This pressure to publish and gain recognition can lead otherwise reputable academics to sacrifice their intellectual integrity.

The stakes are high, as these ideas have real-world implications that affect people’s lives. Scholars and policymakers must recognize the originalism industrial complex and its far-reaching consequences. When Clarence Thomas puts out a call for scholarship on issues like nondelegation or Second Amendment rights, it sets off a chain reaction of dubious theories gaining traction within academia and eventually reaching the Supreme Court.

This ecosystem is perpetuated by individual justices who cultivate these ideas. For example, when Justice Thomas calls for scholarship on contentious issues, it prompts a flurry of activity among academics eager to make their mark. This can lead to a proliferation of dubious theories that gain traction in academia before being adopted by the court.

The Supreme Court’s reliance on fringe scholars has significant consequences for our constitutional framework. As Stern noted in his critique, justices are not entirely blameless; they can deliberately seed ideas and foster their growth within the court. The birthright citizenship case was a “scandal” and a “catastrophe,” according to Stern, highlighting the need for scholars and policymakers to scrutinize this phenomenon more closely.

Ultimately, it is up to us to critically evaluate the scholars who contribute to this ecosystem and hold them accountable for their ideas’ consequences. Only then can we begin to unravel the complex web of incentives and pressures driving the originalism industrial complex. As constitutional guarantees become increasingly vulnerable, it’s crucial that we recognize the subtle yet insidious ways these fringe ideas percolate through academia and into the Supreme Court. The question now is: will we be able to withstand the pressure of this perverse incentive structure, or will it continue to warp our constitutional framework?