The end of OT 2024 at SCOTUS will call forth a variety of analyses, including the of the less helpful sort that reveal more about the analyst than the Court. Before those end-of-term reviews begin to proliferate, it is worth looking back at the excellent NYTimes op-ed by CIT Director Joel Alicea, The Supreme Court Is Divided in More Ways than You Think.

Alicea focuses on disagreements within constitutional originalism that emerged after Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the Supreme Court. This change in personnel led to a majority of Justices professing adherence to constitutional originalism. As a result, questions that “had mostly been hypothetical debates within the court’s originalist minority,” became “central questions of constitutional law.” Two of these questions related to changed conditions and perceptions: “How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute.” According to Alicea, “the defining challenge for the court’s conservatives today is how to maintain a majority to move the law in an originalist direction despite the many theoretical disagreements among them.”

One of the signal merits of Alicea’s op-ed is his framing of disagreement among the Justices within an internal point of view recognizable to the Justices whose disagreements he analyzes. Alicea writes that, for originalists, the “fractious dynamics” among originalist Justices “pose the greatest threat to the urgent effort to restore the rule of law that was so badly damaged by the Supreme Court in 1960s and ’70s under Chief Justices Earl Warren and Warren Burger.” Alicea’s analysis also ought to be of interest outside of originalist circles, as he notes, because “for all observers of the court, regardless of judicial or political inclination, these disputes are key to understanding its decisions.”