The Impact of Movement “Originalism” on American Legal Polarization

The behavior of judges on both the U.S. Supreme Court, and on federal and state courts throughout the United States, has changed dramatically in the past decade – polarizing along party lines in ways not visible in decades past. Yet while this pattern in some respects echoes that seen in other constitutional democracies around the world today, American legal polarization has been driven in important part by a specifically domestic conservative legal movement whose role and impact are still only partly understood. This article shows how that movement’s intellectual and strategic features have functioned to challenge long-settled norms of legality in the United States – including norms of judicial stability and impartiality – and are today driving a growing reactive interest in elevating “movement,” or purposefully impartial, judges on the progressive left. Further, drawing on empirical studies of judicial behavior and public opinion, the article considers the hypothesis that the dramatic growth in polarized judicial behavior these movement forces have helped to drive is in turn contributing to a bipartisan decline in public belief in the possibility (or desirability) of judicial impartiality more broadly. While the conservative legal movement is best known for its efforts to shift the substance of liberty and equality protections under American constitutional law, its more profound impact may be of this latter kind – destabilizing norms that have helped to preserve at least the relative autonomy of law from politics in the United States for more than a century.