What is notable about the academic debate over originalism is not that such a debate exists, but that so much of the debate is misinformed—misinformed about what originalism does or does not entail and why it might be endorsed. In the weeks leading up to the vote on Neil Gorsuch’s nomination, numerous legal academics rose to attack poor caricatures of originalism, and their misinformed attacks were often repeated in the Senate.
Some of the straw men offered by otherwise-notable academics were so flimsy, it was as if they had never encountered a real originalist in the flesh, let alone spent time trying to understand the point of view they were critiquing. Again, the problem was not that they were attacking originalism, so much as the critics did not even appear to comprehend the target they were shooting at.
There are many possible reasons for the empty debate over originalism. One possibility is that some of these critics lack familiarity with originalism, along with other points of view that are unpopular in the academy.
The existence of ideological imbalance on law school faculties has been documented in numerous studies. Analyses of law school hiring, political contributions, and legal scholarship all find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, intellectual property), and are less prevalent in “public law” subjects (e.g., constitutional law).
Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.
As a consequence, at many law schools, students rarely encounter the forceful articulation of right-of-center views. Thus it should be no surprise that many who study in American law schools fail to understand such views. Reading a book or some court opinions can only do so much.