With the addition of Neil Gorsuch, the Supreme Court once again has two talented originalists. But two is not five, and the record so far has been that originalism’s influence on the Court has been more symbolic than consequential. In other words, the opinions that have been most orthodox in their originalism have not made much difference to America’s political life. That is not of course to criticize these opinions. Originalists should focus on reasoning, not results. But the absence of more consequential opinions does suggest that Court is not yet an originalist Court.
Originalism can be symbolic in several ways. First, a jurisprudence of a provision can become pervasively originalist and yet be largely symbolic if that provision is relatively unimportant. That is probably the case with the Confrontation Clause where Crawford v. Washington and Giles v. California are quintessentially originalist opinions. But while the Confrontation Clause is of course important to some defendants, it does not change crime control or even criminal procedure except at the margin. This kind of symbolism might be termed the “Originalism of Small Things.”
Another form of symbolic originalism is for the Court to make a thorough going originalist decision, but not to follow up on its important implications.