H. Justin Pace (Northwestern University – Pritzker School of Law; Western Carolina University – College of Business) has posted The Utility of Originalism in Mitigating Judicial Elite Bias: Evidence from the 2021-2022 Supreme Court Term on SSRN. Here is the abstract:
The U.S. has a stark and growing class divide that is driven not by traditional class markers but instead by education. This has created a new, highly educated elite. Judges are necessarily a part of this new elite and have the potential to show substantial judicial elite bias, a serious concern. This judicial elite bias is not easily mitigated, and potential tools like judicial deference, diversifying the judiciary, living constitutionalism, and common good constitutionalism would either be ineffective or make the problem worse. Originalism has the most potential to mitigate elite judicial bias. And, indeed, it was successful in doing so in the October 2021 Supreme Court Term, as the original public meaning won out over elite preferences in four cases dealing with religious liberty, gun rights, and abortion.