During her 2010 Supreme Court confirmation hearings, Elena Kagan, fresh off a stint as Barack Obama’s solicitor general, created a minor stir in legal circles by stating, “We are all originalists.” While clearly an exaggeration, this statement spoke to a subtle but increasingly apparent truth: Since the 1980s, constitutional text and history have become ever more central to Supreme Court jurisprudence. We are witnessing a quiet judicial revolution. Slowly but surely, and often in fits and starts, judges across the country are paying more and more attention to what the Constitution meant when it was ratified. If you know where to look, the trend is unmistakable. Take, for instance, the Supreme Court’s June decision in American Legion v. American Humanist Association . The case asks whether a 40-foot-tall cross-shaped war memorial in Prince George’s County, Md., violates the First Amendment’s command that “Congress shall make no law respecting an establishment of religion.” Ultimately, the court ruled 7-2 that the cross does not violate the First Amendment. At first glance, the opinions handed down look much like the high court’s other Establishment Clause cases from the past half-century. With no justice capable of assembling a majority coalition, this case has […]
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