Aviam Soifer

Document Type



This brief Essay considers and gently rejects Professor Rick Kay’s faith in originalism as a constraint on judges. It expresses admiration for Kay’s remarkably broad comparative law scholarship and celebrates his pathbreaking work about the early history of the use and abuse of equal protection by American judges.

The Essay applauds ways that Kay has become more comfortable within the paradox of judicial creativity, anchored in constitutional text, yet not rigidly bound by it. It also discusses the author’s abiding friendship with Professor Kay, despite their considerable interpretive differences.