The Origins of Supreme Court Originalist Doctrines: A Manufactured Feedback Loop Between Academics and Justices
Source: Mark Joseph Stern. "Clarence Thomas and originalism: Who cooks up the Supreme Court’s BS?." August 16, 2026. slate.com
The Gist
The author argues that controversial Supreme Court legal theories (like limiting birthright citizenship) don't come from nowhere—they're deliberately manufactured by a feedback loop where justices like Clarence Thomas signal what conclusions they want, and academics eager for career advancement supply cherry-picked historical scholarship to justify those conclusions. This creates a system where predetermined political outcomes get dressed up as neutral historical analysis.
Conclusion
The dubious originalist legal theories that shape major Supreme Court rulings are not organically discovered historical truths, but are instead manufactured through a symbiotic, mutually reinforcing relationship between ideologically motivated justices (especially Clarence Thomas) and fringe academics who supply legal cover for predetermined outcomes.
Premises
- Fringe academics and politicians spent years developing a contrived theory that the 14th Amendment's citizenship clause doesn't mean what it plainly says, which was then laundered through credulous media coverage and embraced by ambitious academics before nearly securing four Supreme Court votes.
- Clarence Thomas has a pattern of cherry-picking historical scholarship that fits his predetermined conclusions rather than objectively following historical evidence, as seen in the birthright citizenship case.
- Justices sometimes actively solicit scholarship to justify predetermined outcomes, as demonstrated when the Court signaled in a shadow docket order that the Federal Reserve was 'different,' prompting scholars to manufacture historical justifications that Chief Justice Roberts later adopted in the Lisa Cook case.
- Thomas previously called for scholarship reviving the nondelegation doctrine, which produced a wave of contested and sometimes 'flat-out incorrect' scholarship that nearly succeeded before the Court pivoted to the major questions doctrine instead.
- Thomas similarly seeded the individual-rights interpretation of the Second Amendment in the 1990s by calling for supportive scholarship, which was later cited by the Court despite being largely debunked.
- Younger legal scholars face perverse career incentives to produce originalist scholarship supporting predetermined conservative outcomes, since doing so can lead to citations by Supreme Court justices, prestigious appointments, and tenure.
Assumptions
- The scholarship supporting these originalist theories is objectively dubious, contested, or debunked rather than simply representing a legitimate alternative interpretive methodology.
- Justices like Thomas have predetermined ideological conclusions that they seek to justify, rather than genuinely following historical evidence wherever it leads.
- The media's role in amplifying fringe legal theories constitutes 'laundering' rather than legitimate reporting on emerging legal debates.
- Academic incentives (tenure, prestige, citations) meaningfully corrupt scholarly objectivity in ways that specifically favor conservative/originalist conclusions.
- The author's own characterization of historical scholarship as 'debunked' or 'incorrect' is itself an objective assessment rather than a contested interpretive stance.