Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay closes with a discussion of the somewhat surprising potential that §5 of the Fourteenth Amendment offers for originalist law reform when situated within a framework of judicial departmentalism. Originalism provides both a foundation for understanding the breadth of Congress's enforcement power under §5 and also a means of grounding enforcement legislation other than existing judicial doctrine. The combination of judicial departmentalism and originalism can be particularly potent for generating originalist law reform in areas in which existing judicial doctrine underenforces substantive Fourteenth Amendment protections when measured against the original law of the Fourteenth Amendment.
Kevin C. Walsh, Originalist Law Reform, Judicial Departmentalism, and Justice Scalia, 84 U. CHI. L. REV. 2311 (2017).