How Many Supreme Court Justices Can Stand on the Point of a Needle? Originalist Scholarship, Political Neutrality, and other Constitutional Nonsense

Authors

• Stephen M. Feldman, University of WyomingFollow

Abstract

In the 1935 article, "Transcendental Nonsense and the Functional Approach," Felix Cohen compared formalist legal reasoning, as practiced by traditional legal scholars and Lochner-era Supreme Court justices, to the philosophical musings of scholastic theologians. Unconnected to empirical reality, formalist legal reasoning was as nonsensical as a disquisition on “‘[h]ow many angels can stand on the point of a needle?’” Nowadays, originalist scholars are similarly engaged in nonsense. These scholars defend, refine, and practice originalist methods of constitutional interpretation as if the Supreme Court justices truly decided cases in accordance with the theory. Regardless, the justices—even the avowed originalists—do not consistently follow originalism. This Article illustrates the disconnect between originalist scholarship and actual constitutional decision making by discussing three recent cases: Trump v. Anderson (restricting the Fourteenth Amendment’s ban on federal officeholding by insurrectionists), Trump v. United States (granting the president extensive immunity from prosecution), and United States v. Rahimi (interpreting gun rights under the Second Amendment).

Despite the disconnect, originalism has proven to be a boon for legal scholarship, generating dozens of articles and books. While originalist scholars have modified the theory over the past five decades, they have largely retained one ostensible goal: to provide a method of interpretation that discovers a fixed and apolitical constitutional meaning. This Article argues that scholars need to stop the nonsense: Stop pretending that the justices follow originalism and that originalism mandates politically neutral Court decisions. Scholars should instead explore the actual bases of Supreme Court decision making. Contrary to originalist claims, the justices interpret the Constitution and decide cases pursuant to a dynamic combination of law and politics. The scholarly need to discuss the law-politics dynamic has never been more urgent. The Trump Administration seems bent on undermining the rule of law and moving toward a more authoritarian regime, yet the Court often sustains Trump’s actions while diminishing democracy and protecting minority rule. This Article starts a discussion of the law-politics dynamic by examining not only merits docket cases, such as the immunity decision, but also recent emergency (shadow) docket cases, including Trump v. CASA, Inc., which held that district courts usually cannot impose nationwide injunctions.

Recommended Citation

Stephen M. Feldman, How Many Supreme Court Justices Can Stand on the Point of a Needle? Originalist Scholarship, Political Neutrality, and other Constitutional Nonsense, 32 Wash. & Lee J. Civ. Rts. & Soc. Just. 379 (2026).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol32/iss2/4