During Chief Justice Roberts's confirmation hearing, he refused to call himself an originalist. And during his nearly two decades on the Court, he has never raised the banner of originalism. But he sure does like to cite history. And it is generally history with a John-Roberts spin. Take Trump v. Vance for example. He relied extensively on Chief Justice Marshall's rulings in the Aaron Burr treason trials. But, as I noted at the time, "Roberts recounted a sanitized version of this seminal dispute." And that history served Roberts's goal of promoting the utmost power of the judiciary over the other branches.
We saw some similar revisionism in Loper Bright. First, Roberts cited Federalist No. 37. This paper is frequently associated with the concept of liquidation–that is, when the political branches engage in some sort of long-term settlement, the meaning of the Constitution itself can be settled, or liquidated. Indeed, this paper has been cited often of late. Justice Kavanaugh raised it during oral argument in Trump v. Anderson. Justice Kagan invoked it in her CFPB concurrence. Justice Barrett relied on that paper in her Vidal concurrence. Justice Kavanaugh leaned into it in his Rahimi concurrence and his Moore majority opinion.
In Loper Bright, however, Roberts seems to recast Federalist No. 37. For Roberts, the liquidation does not occur through settlement in the political branches. Rather, he sees the liquidation as being performed by the Courts themselves. Part II-A opens this way:
