Picking principles: Exploring originalism’s hypocrisy problem

Is originalism a constraining judicial philosophy, or a strategic rhetorical tool used by Supreme Court justices to justify ideologically motivated decisions? Building on Erwin Chemerinsky’s “hypocrisy problem,” this study tests the claim that self-proclaimed originalist justices on the U.S. Supreme Court invoke originalism inconsistently and behave ideologically when the ideological preferences are clear. Theoretically, we argue that originalism’s internal epistemological weaknesses make genuine constraint unlikely. Empirically, we analyze 52 Supreme Court opinions authored or joined by five self-described originalists on the Roberts Court (2005–2022) using a mixed content-analytic design. Our results offer strong empirical support for Chemerinsky’s thesis. The findings suggest that originalism, rather than constraining judicial discretion, functions as a legitimizing rhetoric that masks ideological decision-making. This phenomenon might contribute to the emergence of a “gouvernement des juges”—a judiciary whose interpretive authority rivals that of the elected branches, blurring the boundary between constitutional interpretation and political governance.