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Richard H. Fallon, Selective Originalism and Judicial Role Morality, 102 Tex. L. Rev. 221 (2023).

Abstract: The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court’s actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings. Nor do most of them show much disposition to grant certiorari in many cases that might enable them to overrule past, nonoriginalist decisions. This Article defines and documents the phenomenon of selective originalism. Having done so, the Article then explores the cultural and jurisprudential conditions in which selective originalism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The doctrine of stare decisis, the Article argues, plays an important role in enabling selective originalism. Because it seldom either requires or forbids precedent-based decisionmaking by the Supreme Court, it allows the Court to be originalist when it chooses but not to be originalist when it chooses. In light of this appraisal of the significance of stare decisis in the Supreme Court, the Article criticizes the practice of selective originalism for its inconsistency and disingenuousness. But the Article also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises? We would misunderstand selective originalism, the Article argues, if we derided its misleading pretensions and probed no further. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to overturn nonoriginalist holdings in some cases, though not in all, even when the doctrine of stare decisis is too weak to dictate their conclusions as a strict matter of law. And the reasons why, I argue, contain lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices' functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal that must bear responsibility for the practical and moral desirability of changes that it effects in the fabric of constitutional law. In light of the Court's distinctive functions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law.