Originalism and Summary Judgement

Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an “originalist” method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar “originalist” revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges to resolve a set of cases - those where the sufficiency of a party’s evidence is in dispute - that could only be resolved by juries at the time the Seventh Amendment was ratified. In this Article, I argue that Professor Thomas’s historical findings are an insufficient basis from which an originalist might conclude that summary judgment is unconstitutional. Professor Thomas's analysis more or less rests on a comparison of jury practices in 1791 with jury practices today. But outside a context where one is trying to establish that a practice that existed at the time of the founding is still constitutional today, originalism cannot rest on a mere comparison of founding-era practices to modern practices. Not everything that juries did in 1791 was understood to be unchangeable absent a constitutional amendment. In order to separate the things that juries did that were important to the Seventh Amendment from the things that they did that were not, one must assemble a frame of reference external to the jury practices themselves. This external frame of reference might be assembled from many places - a comparison of founding-era lexicons to the constitutional text, an examination of founding-era statements on the question, an assessment of the original purposes of the Seventh Amendment, etc. - but it has to be assembled from somewhere. Professor Thomas has not yet focused her energies here. As such, more work needs to be done before an originalist can conclude summary judgment is unconstitutional.