During her 2010 Senate confirmation hearings, centrist-liberal Supreme Court Justice Elena Kagan famously allowed that “we are all originalists.” In a 2015 interview at Harvard Law School honoring her then-colleague Justice Antonin Scalia, Kagan proclaimed that “we are all textualists now.”
However, in a dissent opinion to the West Virginia v. Environmental Protection Agency decision, which gutted the Clean Air Act, Kagan wrote: “Some years ago, I remarked that we’re all textualists now. ... It seems I was wrong. The current Court is textualist only when being so suits it.”
What are we to make of Kagan’s change of heart about originalism and textualism? And what does her change of heart tell us about the future of the legal conservative movement?
