It is often said that there is a majority of originalists on the Court, but I think that generalization isn't too helpful. Rather, different members of the Court approach originalism in very different ways. CFPB v. CFSAA teaches us a lot about how the Justices approach constitutional law. (You can download an edited version of the case here.)
The top-line split was 7-2. Only Justices Alito and Gorsuch found that the funding structure of the CFPB was unconstitutional. And on paper, a least, all seven members of the majority joined a single opinion. Justice Thomas's majority opinion was textualist: what is the original public meaning of the word "appropriation" in the Constitution? Justice Kagan wrote a concurrence joined by Justices Sotomayor, Kavanaugh, and Barrett, that found support for the CFPB's funding structure in post-enactment practice. Justice Jackson wrote a short, solo concurrence that preached judicial restraint, citing an unlikely troika: McCulloch v. Maryland, Nebbia v. New York, and King v. Burwell.
What happened here? First, a four-member concurrence is somewhat unusual. Indeed, I suspect that the Kagan position likely had the support of Chief Justice Roberts and Justice Jackson. But if either or both of those justices joined Justice Kagan's concurrence, it would have had five or six votes, and would effectively become another majority opinion. Indeed, I agree with Mike Dorf that Thomas would not join Kagan's concurrence. In this event, the Kagan opinion would have six votes, and the Thomas opinion would have seven votes. What is the majority then?
