The originalist industrial complex includes far more than the Federalist Society, the right-wing fraternity, funder, and employment agency for those eager to advance the legal and political goals of the modern Republican Party. What has flown below the radar is the weaponization of originalism by a small number of academic centers that package, market, and provide an array of custom concierge surfaces for would-be originalists.
One example is the Claremont Institute’s John Marshall Fellowship program, which targets future judicial clerks. Participants in these seminars have the chance to study with John Yoo, author of the war on terror’s torture memo, and John Eastman, the primary legal architect of the Jan. 6 insurrection. The mission of the fellowship is to spread the gospel of originalism, according to the website: “The John Marshall Fellowship Program is intended for prospective clerks and legal scholars who will have opportunities to educate the judges and Justices with whom they work, and the legal community at large.”
The Federalist Society’s rise to dominance has had the side effect of dismantling all rivals to originalism, meaning that nearly all other forms of serious conservative constitutional thought have suffered. There are now few champions of old-fashioned judicial minimalism or restraint left in the legal academy. What does that mean practically? Elite law schools must now hire originalists to prove their ideological “diversity.” Thus, the only form of affirmative action left in the legal academy is hiring originalists at elite law schools.
Georgetown Law’s Center for the Constitution runs an “originalist boot camp” that exists to train the next generation of ideological warriors for the movement. Even more troubling, the Georgetown Center has been running a stealth seminar for judges. In a clever bit of detective work, Yale legal scholar Reva Siegel has ferreted out the vital role that this “seminar” plays in the originalist ecosystem:
Georgetown runs a separate special seminar entitled “Originalism for Judges.” To put the point modestly, a program called “Originalism for Judges”—whose apparent attendance list features only judges appointed by Republican presidents and academics who employ originalist methods without skepticism about their practical or normative problems or considered analysis of alternatives—will (1) restrict the perspectives on originalism that the judges discuss and (2) provide a rich opportunity to infuse originalist interpretation with values-based reasoning.