Paging my friends Randy Barnett, Josh Blackman, Will Baude, Larry Solum, and others … In preparing for my July 22 talk on “Constitutional Aspects of Puerto Rico’s Political Status,” I noticed that no other Justice of the U.S. Supreme Court joined Justice Thomas’s concurring opinion in the landmark Appointments Clause case that was decided on June 10, 2020. (That case involves the constitutional status of the members of Puerto Rico’s new neo-colonial financial oversight board.) Justice Thomas’s concurring opinion was explicitly based on the original public meaning of the Appointsments Clause, so either “public meaning originalism” is dead or the other textualist judges (e.g. Alito, Gorsuch, and Kavanaugh) disagreed with Thomas’s interpretation of what the original public meaning of the Appointments Clause is. (I will have more to say about my July 22 talk and the Appointments Clause case in the next day or two.)
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