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![handle is hein.journals/brklr91 and id is 1 raw text is:
Populist Primacy
Jacob Eisler*
INTRODUCTION
The Roberts Court is remaking American constitutional
democracy, from individual rightsi to democratic process2 to
governmental administration.: There are two wildly different
explanations. One, advanced by the conservative majority and a
handful of sympathetic scholars, is that this upheaval is a side
effect of a methodological change.4 In this view, the Court's
adoption of originalism has altered the nature of legal
interpretation, and any consequences for democracy are
* James Edmund and Margaret Elizabeth Hennessey Corry Professor,
Florida State University College of Law, jeisler@law.fsu.edu. This paper benefited from
presentations at the Southeastern Association of Law Schools 2025, Baldy Center at the
University at Buffalo School of Law, Constitutional Law Colloquium at Florida State
University College of Law, Junior/Senior Conference at the University of Alabama
School of Law, Florida State University Constitutional Law Colloquium, Federalist
Society Annual Faculty Conference, and National Conference of Constitutional Law
Scholars at the University of Arizona College of Law. For thoughtful engagement and
comments, thanks to Richard Briffault, Jim Gardner, Josh Douglas, William Magnuson,
Nadia Banteka, Travis Crum, Atiba Ellis, Ben Johnson, Gene Mazo, Jonathan Shaub,
Almas Kahn, Richard Briffault, Mark Scarberry, Matt Dimick, Paul Linden-Retek,
Manoj Mate, Tony O'Rourke, Jorge Luis Fabra-Zamora, Nick Almendares, Lucien
Ferguson, Brian Slocum, Jake Linford, Alex Tsesis, Mark Seidenfeld, Rebecca French,
Mateo Taussig-Rubbo, Jessica Roberts, Jonathan Marshfield, Steven Griffin, Shalini
Ray, Clare Ryan, Eisha Jain, Noah Rosenblum, and Adam Lebovitz. Excellent research
assistance was provided by Jonathan Hestres-Rivera, Abigail Morgan, Jack Rowan, and
Leila Basili of FSU Law.
1 E.g., Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022);
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct.
2141 (2023); N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022).
2 E.g., Shelby County v. Holder, 570 U.S. 529 (2013); Rucho v. Common Cause,
139 S. Ct. 2484 (2019); Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct. 1221
(2024).
a E.g., Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024); West
Virginia v. EPA, 142 S. Ct. 2857 (2022); Biden v. Nebraska, 142 S. Ct. 2355 (2023).
4 Notably, defenses of the Roberts Court's mode of reasoning tend to take the
form of evaluating underlying methodologies such as originalism, rather than the effects
of the Roberts Court's decision-making. See, e.g., William Baude, Is Originalism Our
Law?, 115 COLUM. L. REV. 2349 (2015); Michael Ramsey, Jonathan Gienapp vs. Stephen
Sachs on Originalism, THE ORIGINALISM BLOG (Oct. 10, 2024),
https://originalismblog.com/jonathan-gienapp-vs-stephen-sachs-on-originalismmichael-
ramsey/ [https://perma.cc/96TV-A4PS]. Notably such a methodological focus is coherent
with the wider commitments of the prevalent approaches, see generally discussion infra
Section I.A.
1](ViewImageLocal?handle=hein.journals/brklr91&div=1&collection=&method=preview&ext=.png&size=3)