A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary

*Elizabeth D. and Richard A. Merrill Professor of Law, University of Virginia School of Law. This Article has benefitted from many thoughtful comments and criticisms, including from Jordan Allen, Margo Bagley, Charles Barzun, Will Baude, Mitch Berman, Tommy Bennett, Andrew Bradt, Tom Colby, Kristen Eichensehr, Barry Friedman, Judge Nancy Gertner (retired), Risa Goluboff, Tara Grove, Hunter Heck, Felipe Jiménez, Matt Kramer, Marin Levy, Jonathan Nash, Dave Plunckett, Steve Sachs, Fred Schauer, Liz Sepper, Scott Shapiro, Kate Shaw, Fred Smith, Larry Solum, Nina Varsava, Emily Kidd White, Katie Young, and Kyle Ziemnick, as well as from participants at faculty workshops at the University of Texas School of Law, George Washington University Law School, and the Emory University School of Law, a symposium at Washington University in St. Louis, and the Dartmouth Legal Theory Roundtable. Finally, many thanks to the conscientious editors of the Virginia Law Review.Show More

This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision are the law for that jurist and, therefore, part of the overall law of the legal system. This theory offers a richer and more useful account of law in the United States today, including its dependence on the views of individual judges. Personal positivism also recognizes that the law is increasingly constituted by the views of competing groups of judges—one liberal, one conservative, and each with its own set of personal rules. At the same time, personal positivism maintains that there is an abundance of genuine law—not just politics—even in contested cases. The problem facing the U.S. legal system, then, isn’t that law is being replaced with politics, but rather that the law is too fragmentary. And the solution is not to ignore or suppress judicial individuality, but to harness it.

Introduction

What is the law of the United States? Consider the following examples, all from the Supreme Court’s last Term:

• After receiving a skeptical oral argument question from Justice Thomas, advocate Paul Clement agreed that “I wouldn’t be making this argument in this case to you” and pivoted to a different rationale “under your”—that is, Justice Thomas’s—“jurisprudence.” Clement then discussed Justice Thomas’s personal views in detail, concluding: “[T]his is a case where your own jurisprudence would give you the same answer, I think, as a majority of the court . . . .”¹ 1.Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence).Show More
• In another oral argument, Chief Justice Roberts noted that the U.S. Solicitor General’s position defied the practice of “those of us who were on the D.C. Circuit.” Justice Kavanaugh agreed, responding to the idea that the U.S. Court of Appeals for the D.C. Circuit was “not paying attention to the text” by asserting: “Yeah, we did.” And, when Justice Jackson expressed similar skepticism, Justice Kagan noted: “Seems to be a kind of D.C. Circuit cartel,” to which Justice Jackson responded: “It is. It is.”² 2.Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58).Show More
• Just a few years after affirmative action’s critics became “greater now in number on the Court,” six Justices held that race-conscious university admissions practices violate the Equal Protection Clause. These events, Justice Sotomayor argued in dissent, fostered “suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law.”³ 3.Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources).Show More

These examples may seem like aberrations, embarrassments, or worse. But they are best understood as clues. They help us to see what is normally invisible: to be a judge, particularly a Supreme Court Justice,⁴ 4.Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106.Show More is to be a law unto oneself.⁵ 5.Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14.Show More

To bear out that claim, this Article develops a new way of understanding the nature of law.⁶ 6.See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”).Show More In brief, each judge’s publicly known rules of decision can be viewed as the law for that jurist and, therefore, part of the overall law of the legal system.⁷ 7.Regarding my focus on judges, see infra note 37 and infra Section II.B.Show More This “personal positivism” differs from the canonical positivism of H.L.A. Hart because it grounds the content of the law in the potentially distinctive views of each official, rather than in a consensus practice among officials.⁸ 8.See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104.Show More Figuratively put, the conventional view is of the law as a monolith, whereas I want to describe the law as a mosaic.

The importance of identifying the law goes far beyond jurisprudential debates. After the recent spates of judicial appointments by Presidents Trump and Biden, the U.S. legal system is newly riven by methodological and ideological disagreement.⁹ 9.See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity).Show More There are now two distinct groups of U.S. judges, each with its own commitments, heroes, and fissures.¹⁰ 10.Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization).Show More In the face of that fractured reality, efforts to cast the law as shared and unitary are inapt. Yet judges and scholars persist in doing so, following a jurisprudential path that allows for grand claims but little progress.

Take any number of major decisions in recent years. When considering whether to overrule Roe v. Wade,¹¹ 11.410 U.S. 113 (1973).Show More transform administrative law,¹² 12.West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).Show More strengthen Second Amendment rights,¹³ 13.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).Show More or whatever else, how do judges, advocates, and lay observers ascertain the law? Again, Hartian positivism begins by asking about consensus practices among officials.¹⁴ 14.See Hart, supra note 8, at 108.Show More But consensus practices cannot answer a host of contested questions. The upshot is that there can be almost no determinate law in contested cases. The Justices must instead be left with vast and unchanging discretion—year in and year out.¹⁵ 15.See infra text accompanying notes 62, 132 (collecting sources).Show More

But that, too, would be wrong. The Justices regularly abide by publicly known rules and so do not act like policymaking legislators. Sophisticated observers are intimately familiar with the individual records of each justice, and advocates pitch their cases accordingly.¹⁶ 16.See Re, supra note 6, at 845.Show More Moreover, anyone familiar with the U.S. legal system understood that replacing Ruth Bader Ginsburg with Amy Coney Barrett instantly affected legal practice as well as the authority of various legal sources. In short, people unencumbered by jurisprudence routinely act as though there is a lot of determinate law, even in cases at the Supreme Court. It’s just that that law is substantially personalized.

None of this is to insist that there is just one right way to understand the law or its nature.¹⁷ 17.Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”).Show More Jurisprudential thinkers frequently purport to identify a “general” theory of law that assertedly applies to most or all legal systems. I adopt a more complex meta-jurisprudential stance. At the outset, I defend personal positivism as a plausible general theory of the law. And I further argue that personal positivism has significant advantages over other approaches to general jurisprudence, including Hartian positivism. At the same time, I recognize that rival theories of law capture different truths. The answer to the question “What is law?” should accordingly turn on the question’s context and purpose.¹⁸ 18.See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict).Show More In a legal system characterized by judicial uniformity, or when trying to get the gist of how a legal system operates, it could make sense to follow Hart in starting with consensus practices.¹⁹ 19.See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete.Show More Today, however, the realities of the U.S. legal system make personal positivism indispensable.²⁰ 20.Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal.Show More

To see the distinctive, even urgent importance of viewing the U.S. legal system through the lens of personal positivism, consider three interrelated challenges. First is the prospect of cynicism: especially after recent decisions like Dobbs v. Jackson Women’s Health Organization,²¹ 21.142 S. Ct. 2228 (2022).Show More many observers have suggested that constitutional law largely amounts to politics.²² 22.See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984).Show More Second is the question of reform: if constitutional law is just policymaking, then the Court as we know it should probably be scrapped—as commentators have also suggested.²³ 23.See infra note 204.Show More Third is the asserted hegemony of originalism, which now guides most Justices²⁴ 24.See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”).Show More: is originalism “our law,” and, if so, what are its demands on conscientious legal actors?²⁵ 25.Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015).Show More Personal positivism casts each of these challenges in a new and more favorable light.

Start with the prospect of cynicism.²⁶ 26.See, e.g., supra note 22.Show More While there may be precious little consensus law in contested cases, there is a vast amount of individual and group-based law. In fact, there may be too much law in contested cases. The judiciary is composed of individuals who adhere to personal rules, and groups of those individuals tend to endorse convergent rule sets. The result is group-based disagreement, with relatively formalist and conservative judges ascendant.²⁷ 27.Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”).Show More Jurists today are about as rulebound as their predecessors were, if not more so. But when placed in the same judicial system, these judges’ conflicting legal commitments can generate unpredictability, or worse. So the claim that there is no constitutional law, or that constitutional law is just politics, misses the real problem.

That more nuanced picture of the legal system leads naturally to the topic of reform. If the courts often aren’t acting as courts at all, then it makes sense to staff the judiciary as though it were a legislature, or else disempower it.²⁸ 28.See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6].Show More But once we see that personal law exists between policy and consensus law, we can envision subtler reforms, such as creating permissions that recognize and grapple with the genuinely legal diversity among jurists. Rather than insist that the law exists apart from individuals and their personal commitments, the law can be crafted with those different individuals in mind. The point is to foster stability, compromise, and moderation, while avoiding turbulence, obstinacy, or alienation—and to do so in a more nuanced way than simply continuing to insist that one’s own preferred views are correct.²⁹ 29.Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”).Show More

Part of that effort must grapple with the varied theories of constitutional law put forward by judges and scholars. Take originalism. Professors Will Baude and Steve Sachs have argued—based on Hartian positivism—that originalism is in fact the law of the United States.³⁰ 30.See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C.Show More But the positivist case for originalism starts off on the wrong foot by following Hart in seeking an abstract principle of consensus.³¹ 31.See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”).Show More By contrast, personal positivism looks to individual jurists and so reveals not just originalism in the U.S. legal system, but also a lot of non-originalist methodology, as well as many relatively specific commitments (or “fixed points”) even among originalists. Thus, originalism and other constitutional theories form only parts of our law, even if very important parts.³² 32.Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”).Show More

1.  Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence). ↑
2.  Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58). ↑
3.  Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources). ↑
4.  Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106. ↑
5.  Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14. ↑
6.  See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”). ↑
7.  Regarding my focus on judges, see infra note 37 and infra Section II.B. ↑
8.  See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104. ↑
9.  See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity). ↑
10.  Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization). ↑
11.  410 U.S. 113 (1973). ↑
12.  West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022). ↑
13.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). ↑
14.  See Hart, supra note 8, at 108. ↑
15.  See infra text accompanying notes 62, 132 (collecting sources). ↑
16.  See Re, supra note 6, at 845. ↑
17.  Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”). ↑
18.  See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict). ↑
19.  See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete. ↑
20.  Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal. ↑
21.  142 S. Ct. 2228 (2022). ↑
22.  See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984). ↑
23.  See infra note 204. ↑
24.  See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”). ↑
25.  Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015). ↑
26.  See, e.g., supra note 22. ↑
27.  Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”). ↑
28.  See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6]. ↑
29.  Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”). ↑
30.  See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C. ↑
31.  See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”). ↑

32.  Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”). ↑