originalist intent
:{1019 belated?
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primary 2 23 on clarence 2nd amend
see alito
SEE JILL LEPORE ABORTION GUN CONTROL MEESE STROM THURMON
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AN 10 26
Supreme Court Justice Samuel Alito has spent his career skeptical of the rigid version of originalism championed by Justice Antonin Scalia. Now, that skepticism has placed him in an unexpected position: as a model for a Trump-era legal movement increasingly impatient with old conservative rules.
Jack Goldsmith, a professor of law at Harvard, states in an article for The Atlantic that the new book by Alito, titled So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, demonstrates a justice who is attempting to reshape originalism even though the New Right has moved beyond it.
The view of originalism holds that the Constitution should be understood in the light of its meaning at the time that its provisions were adopted, and for many years it has been the central doctrine of the conservative legal movement since it committed to limiting judges from imposing their political preferences.
Yet Alito has never been able to fit properly into that pattern.
Goldsmith points out that when he was serving on the federal appeals court, Alito seldom used originalist reasoning and at times disagreed with Scalia after he had joined the Supreme Court; in his book So Ordered, Alito sets out what he terms a "working judicial" form of originalism which allows judges more scope to use their judgment in cases where the Constitution does not offer a clear answer.
He also regards restraint as not being the main aim, on the ground that originalism “sometimes calls for bold action.”
As Goldsmith points out, this reflects a broader change on the right. The idea behind traditional originalism was to keep judicial decisions separate from political consequences. However, a growing New Right legal movement aligned with President Donald Trump has become dissatisfied with that arrangement, favoring conservative results and judges willing to uphold Trump’s program over strict adherence to originalist methodology.
Goldsmith refers to originalism as an increasingly "zombie creed" since it is still used as a way of earning conservative credentials even though it has little effect in explaining how the Supreme Court's right-wing majority arrives at its decisions in important cases.
Goldsmith notes that a number of conservative justices, such as those appointed by Trump, have joined the liberals in opposing major initiatives of the second term administration. The fact that they have made these rulings has annoyed Trump and his supporters, who have in turn attacked the conservative lawyers and judges that they regard as not loyal enough.
Goldsmith stresses that Alito is not formally a member of that New Right movement and that he does not depict his judicial decisions merely as a means of achieving political results; instead, he presents Alito as a serious lawyer whose legal philosophy is influenced by conservative instincts, even though those principles may be difficult to reconcile.
The similarity is clear. Goldsmith states that Alito, along with Clarence Thomas, has supported the administration in all of the major cases during its second term, and at the same time his focus on results, his skepticism about restraint, and his attitude towards the cultural wars are in line with the legal movement that has developed around Trump.
Which is why, Goldsmith concludes, Alito has become a figure he never originally intended to be: the Supreme Court's unintended face of the Trumpian legal agenda.
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AN SLATE 12 25
Slate Senior writer Mark Joseph Stern says the Supreme Court is gearing up to hand President Donald Trump kinglike firing powers over independent federal agencies in Trump v. Slaughter, peddling the false argument that the Constitution gives the commander in chief absolute control over the executive branch.
The argument from conservatives on the court is that this supreme power is rooted in tradition, but “they are wrong in every conceivable way,” said Stern.
“Their pop-historical account of the Constitution has been debunked from top to bottom by legitimate legal historians, who have refuted the rotten moorings of this bogus theory with devastating precision. And yet there is no real question that the Supreme Court’s Republican-appointed justices will endorse it anyway in Slaughter, handing Trump sweeping new authority to abuse his office in direct violation of federal law,” said Stern. “This near-inevitable ruling confirms the most stinging critique of originalism: It allows judges to align constitutional meaning with the Republican Party’s preferences, disregarding evidence that contradicts their desired outcome.”
When Congress created the FTC in 1914, it allowed the president to fire commissioners only for “inefficiency, neglect of duty, or malfeasance in office.” Lawmakers wanted a panel of experts insulated from partisan pressure who would act in the best interest of the American people rather than promote the president’s ambitions. And in 1935 the Supreme Court unanimously upheld these good-cause protections against removal in a landmark decision called Humphrey’s Executor.
Leaders at more than two dozen multimember agencies are, for now, shielded against presidential termination by statute, giving people like Federal Reserve Chair Jerome Powell independence from Trump, no matter how hard Trump boasts of wanting to remove him.
But when Rebecca Slaughter, a Democratic member of the Federal Trade Commission, sued over her firing lower courts reinstated her SCOTUS overruled them by a 6–3 vote through the shadow docket, without argument or debate. Stern said these six justices did the same when other agency leaders sued for their jobs. Then the conservative supermajority scolded lower courts for failing to accept that Trump’s removals were now endorsed and legitimized by the Supreme Court.
The Republican-appointed justices want Trump to be king because all six are deeply committed to the “unitary executive” theory, an idea that Stern said is foundational to the modern conservative legal movement.
“The premise of the theory is that the president does not merely lead the executive branch; he is the executive branch, because the Constitution vests the ‘executive power’ in him alone,” said Stern. “Agencies like the FTC and the NLRB ostensibly exercise this power by interpreting and enforcing the law. But under the Constitution, they may do so only on the president’s behalf. And so if the president disagrees with officers leading these agencies, he must be able to fire them at will. Any impediment to this ‘removal power’ unduly restricts the commander in chief’s inherent authority.”
But the actual text of the Constitution says none of this, Stern adds. There is no “removal clause,” nor any definition of “executive power” that implies total dominion over the executive branch.
“… [James] Madison acknowledged that some executive branch officials could be shielded from termination. So did Alexander Hamilton, who argued that the president could not fire executive officers without the consent of the Senate. So did Chief Justice John Marshall, who arguably did more in this period than any of his contemporaries to shape constitutional interpretation,” Stern said.
The fact that the first Congress enacted an independent agency, the Sinking Fund Commission, to manage repayment of the nation’s debt and the president was unable to fire several of its members alone “reveals that many of the men who wrote the Constitution did not think that it gave the president unlimited authority to fire high-ranking federal officials,” said Stern.
“Now Trump wants the Supreme Court to say that Madison, Hamilton, Marshall, Story, and all the rest were wrong. He wants the justices to give him the unprecedented authority to seize control of the FTC, the NLRB, and other independent agencies by sacking their Democratic members,” said Stern.
Read the Slate article at this link.
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MASTER PLAN Bonus: The Other Memo
in this exclusive MASTER PLANbonus episode, Lever Timeproducer Arjun Singh and investigative journalist David Daley discuss the rise of the conservative legal movement, including anotherlittle-known memo responsible for the emergence of right-wing groups like the Federalist Society.
Nearly a decade after the Powell memo was published, conservative legal activist Michael Horowitz was commissioned by the right-leaning Scaife Foundation to develop a ground-up strategy for enshrining conservative ideology into law. In his 1980 report, Horowitz recommended recruiting and empowering young conservative minds on law school campuses. By “captur[ing] youthful loyalties,” he argued, conservatives could “redefine what is moral in law.”
Horowitz also pressed for a rebranding of the ideological right, noting “the very decline in power of the American business community over the last decade… is perhaps the best evidence that the skills in the business community are not well correlated with the skills involved in generating idealism and enlisting the intellectual loyalties of bright young men and women.”
These writings would become the foundation of the Federalist Society, which used the strategy laid out in Horowitz’s memo to recruit and advance the next generation of conservative legal minds — including six of nine justices who currently sit on the U.S. Supreme Court.
This episode and transcript are available for paid subscribers only.**Click here to upgrade now**.
If you’re already a paid subscriber, you can access the materials below. If you don’t see the content, please click here to log in and reload this page.
Bonus Episode Transcript
DAVID SIROTA:Hey MASTER PLAN listeners — first off, thanks for being a paid subscriber. Your support makes this project possible, and funds all of our investigative work at The Lever. Please enjoy this exclusive bonus episode for paying subscribers.
In MASTER PLANEpisode 7, you may remember hearing about the rise of the Federalist Society as the group worked in the early 2000s to expand its network of lawyers and launch a conservative takeover of the federal courts.
As part of our research for MASTER PLAN,we spoke with an expert on the right-wing legal movement’s expansion — David Daley, author of *Antidemocratic: Inside the Far Right's Fifty-Year Plot to Control American Elections.
You’ve learned about the Powell Memo — but what you haven’t heard about is the other secret memo directly responsible for the rise of conservative legal groups like the Federalist Society, the Heritage Foundation, and more. This memo, written by right-wing scholar Michael Horowitz, called for a guerilla-style ideological takeover of law schools across the country and a ‘ground-up’ approach to building support for Big Business.
For the Lever Time podcast last week, Senior podcast producer Arjun Singh sat down with David Daley to discuss the contents of that other memo, the Horowitz memo — here’s the extended version just for MASTER PLAN Premium subscribers
ARJUN SINGH:Awesome. David Daley, it's great to have you here on Lever Time. It's a topic that I'm obsessed about. We at The Lever are always obsessed about it too. But you had written a book previously called Ratfuck. You had written about gerrymandering in the time that you had started writing about gerrymandering, the Shelby court case, which I want to ask you about later.
In writing your new book, which is really about the right-wing efforts to take over the court. How have your perspectives on how American democracy functions changed? Like when you were writing about gerrymandering, did it seem like this effort by the right to really control our elections was something you saw very prevalently, or was that something that changed over time?
DAVID DALEY:I think that it's something that has changed over time. I think that this is, in many ways, the product of the last 15 years, and it's really the product of the combination of the strategy that Chris Jankowski had with red map to gerrymander American state legislatures and congressional delegations, and the strategy that Leonard Leo had to take over the courts, along with the anti-democratic nature of Chief Justice John Roberts’ thoughts on voting rights, and when you mix the three of those together, what you have is a recipe for entrenched, enduring right-wing minority rule.
The gerrymanders have put really staunch conservative election deniers in control of caucuses in crucial swing states that are more than willing to pass election laws that benefit their side and suppress minority voters, the court has liberated them to do all of this with a series of cases from Shelby County on, that has taken on and effectively eviscerated the protection mechanisms in the Voting Rights Act. And when you put the two of those together, it really draws a tight knot around American democracy, and I fear we're headed towards learning just how tight that knot is.
ARJUN SINGH:This fall, you write in the book about something called the Horowitz memo, and we at The Lever, just released a new podcast series called MASTER PLAN, where we focus on the Powell memo, which was written by Lewis Powell, and it was sort of this memo to almost instruct the business community about how to better control and operate in politics. But you talked about also in a great piece in The Atlantic about another memo, the Horowitz memo. Tell me about the Horowitz memo and the role that it plays in the story that you are telling about this effort by the far right to take over our political system.
DAVID DALEY:MASTER PLAN is absolutely brilliant, by the way, so let me start there. Congratulations on it. Thank you. Fantastic piece of work. We completely agree on the importance of the Powell memo. Lewis Powell wrote what was effectively a roadmap for big business to get involved in politics, to counter what the future chief to counter what a future Justice, Lewis Powell, believed to be the insidious nature of left-wing control of American society and campus in the mass media. Sounds a lot like Leonard Leo today — doesn't he? — and he was deeply influential on the Koch brothers, on Richard Mellen scaife, on all of the conservative founders who built so much of the scaffolding of the conservative right.
One of the things that they didn't do, particularly effectively, though, was build legal institutions. What the right did… they built the American Enterprise Institute and the Heritage Foundation and the Koch brothers got underway, but they also built this entire series of conservative public interest law foundations around the country that didn't have the influence that Powell suggested that they would, and donors got a little frustrated with it for about a decade, they spent tens of millions of dollars on this regional system that effectively generated a pile of amicus briefs, but didn't actually gain significant policy victories.
So there was a man named Michael Horowitz who was a real student of what the left had done with regards to public interest law, what the Nader organizations had done, for example, on really building power in Washington and working with the government and the regulatory agencies in order to bring about the environmental gains, and, you know, safer cars. And Horowitz took a look at what the left was doing and said, guys, we're doing this all wrong. On the right, we are invested in this big, sprawling regional network, and the power is in Washington, D.C., and you're trying to do this big, top down thing, when really what you've got to do is go ground up our legal power.
He said, our brain power is appallingly mediocre, and what we have to do is go into law schools. We have to win hearts and minds and convince people that they are doing something important. They're not defending DDT, they're not defending General Motors. They are part of a conservative movement that can actually affect hearts and minds.
And so when the donors are asked around the same time to give money to this new entity called the Federalist Society, all of these big organizations had read and digested the conclusions of the Horowitz report, and when he brought around these young conservatives like Lee Lieberman, Otis and Gene Meyer to the foundations for the grants that would launch the Federalist Society, which is probably the greatest return on investment of any nonprofit in American history, they were primed and ready because of what Michael Horowitz had done. He set out a different direction for the conservative legal movement, a course correction.
ARJUN SINGH:So what was the ideology that they were trying to push? What did they want law students to take away from this, and how did that differ from, I guess, the conventional wisdom of what was being taught in law school at the time?
DAVID DALEY:I think the conventional wisdom of what was being taught in law school at the time, I mean, law school at the time may well have been the kind of more liberal hegemony that some conservatives would like to say is right. When you talk to these conservatives who are at the elite law schools, they felt radically outnumbered. You know, they talk about on the day after election day of 1980 Ronald Reagan is elected, and their law professors asked for a show of hands for who had voted for Ronald Reagan, and maybe two or three hands would go up in a room of 150 people. So they felt beleaguered and outnumbered.
Now, the right often feels beleaguered and outnumbered, even in institutions that they actually really control. So I think it's, you know, I don't think that these Ivy League law schools, by any stretch of the imagination, were turning out young radicals, but they were feeding into sort of the cool culture. And the cool culture was the public interest law firms that groups like Nader and Charlie Halpern were running that were having a real impact in Washington and elsewhere, and yet the country was changing, right?
I mean, Ronald Reagan had been elected president, and when they wanted to try to staff conservative administrations, when they wanted to appoint conservative judges, they didn't have any infrastructure to go to for reliable people. So what they wanted to do really was build that bench. What they intended to do with the Federalist Society is exactly what it has become. They wanted to build a careerist organization that they would get to know young people. They would be able to advance those people into positions of power, and they would be able to trust on their ideologies as they move them along the path.
ARJUN SINGH:And I imagine part of this too, is that if you educate a generation, starting with lawyers, and you know, people within academia, you're also going to eventually spread not just to the court system, but eventually into general politics, Republican politics as well.
But this idea of like a conservative judge, I think, if you think about it now, there is an image I certainly have, which is, you know, a conservative judge is like a Scalia, Amy Coney Barrett, but you know, they would overturn Roe v. Wade. Increasingly, it seems to be they have no limits on presidential authority and power. But when the Reagan era. That early Federalist Society era. What did they mean by a conservative judge? Was it that, like judges were too hard on business? Was it culture kind of stuff? What was kind of the ideal conservative judge to them?
DAVID DALEY:I think much of this was a backlash against the Warren Court and what followed. So the idea that they were opposing was this idea that judges were making up the law and legislating from the bench.
ARJUN SINGH:And this was Chief Justice Earl Warren from California, right?
DAVID DALEY:That's right. So, Chief Justice Warren from the late 1950s into, boy, the late 1960s or so, and this is the great era of rights expansion on the U.S. Supreme Court. You are, you are talking about the apportionment revolution, that the great one person, one vote revolution, but also the expansion of the right to privacy of birth control later that would blossom, not under Warren, but under many of those judges into Roe v Wade.
And this court really was what conservatives and the fledgling Federalist Society grew in order to oppose and they used the birth of originalism. Here you can track originalism's birth all the way back to the days after Brown v. Board of Education and those who were opposed to that decision.
ARJUN SINGH:What is originalism? Again? It's like a strict reading of the Constitution?
DAVID DALEY: The idea that judges are only going to use the original intent of the founders in order to make decisions, which sounds pretty good, right? Oh, we don't want judges who are making up the law. We want judges who are going to support a reading of what's actually in the Constitution.
Except that when you go back and find their memos, as I have and other reporters have, they understood full well that originalism was a fig leaf for getting to conservative results through the judicial process while pretending that you were still sort of wearing the robes of the founders, right?
ARJUN SINGH:I mean, it was, yeah, “this is what the founders wanted you to do.”
DAVID DALEY:Originalism is like founders cosplay and that's what they were up to creating. Because when judges went before Congress, like Robert Bork and others and said, “well, we're going to overturn Roe v. Wade, or we don't believe in the Griswolddecision. They were not confirmed.
So they needed a way to talk about all of this that would get their judges and justices confirmed without scaring America. And so this idea of originalism comes forth as such common sense that Rush Limbaugh could talk about it on the radio, and Americans could say, Yes, I believe that this ought to be the way that we interpret the Constitution. In reality, it was a Trojan horse.
ARJUN SINGH:I feel like, you know, there has been so much attention rightfully put on what happened when Donald Trump tried to overturn the election, but in the years preceding that, there felt like there was quite a bit of anti-democratic effort. You talked about it in one of your books, Ratfucked, which is about gerrymandering –– we were talking about that at the top.
Before we get to the kind of 2016, 2020 Trump era, when you have after, say, the 2000s after Bush v. Gore. What are some of the ways that anti-democratic attempts take place via the court system? And I guess one that I'm thinking about a lot is a Supreme Court case, Shelby v. Holder. I think that John Roberts is, by this point, Supreme Court Chief Justice — he's been appointed by George W. Bush, and that was a big one about voting rights, and it felt like in addition to gerrymandering, there was a big effort to really dismantle voting rights. But can you talk a little bit about that? And were there other kinds of efforts, not necessarily even on Supreme Court level, but on lower court levels, to start to dismantle the voting rights system that we have?
DAVID DALEY:Yeah, dismantling voting rights has really been John Roberts’ life's work. You can go back to his days in the Reagan administration as a young person in Washington in the early 1980s but certainly by the time he is Chief Justice in Shelby County v. Holder, he eviscerates what had been known as preclearance, which was the crucial enforcement mechanism that prevented the states with the worst histories of racial prejudice and voting from enacting any changes to their laws without preapproval of them, and that had worked for 50 years to hold back the worst instincts of these states to keep them in check.
And John Roberts in 2013 insisted that things had changed in the South. Congress thought otherwise, right when Congress reauthorized the Voting Rights Act in 2006 — a Republican Senate, unanimously, 98 to nothing. A Republican House, 390 to 33. A Republican President, George W. Bush, signing it into law, along with a 16,000 page report documenting exactly why preclearance was still necessary in all of these states.
Example after example, canceled elections and moved precincts and just all the same old poison in new bottles. And Roberts, the humble caller of balls and strikes, ignores all of this, just thrusts it aside and says, Well, I think things have changed. He does this in the most dishonest way you can possibly imagine, first, by misreading census data on race that actually says the opposite of what he proclaims it does in his decision. And second, by just making up the law he makes up. Right, again this school of thought that says judges are going to simply interpret the law, not make up the law.
Roberts makes up the idea of equal sovereignty among states, which he takes from the equal footing doctrine, which has nothing to do with voting rights or any other rights, but has to do with the admission of new states. And he takes a couple of sentences from a previous court case on voting rights that mention the idea of equal sovereignty and how it doesn't apply here, and slices the crucial part out with an ellipsis, deletes it as if it was never there, and says, voila, look at my standard of equal sovereignty. And he even calls it a traditional theory. And then says, I'm going to put an end to this. You can't treat Alabama and Texas any differently than you would treat Iowa and Montana and Connecticut.
The trouble with this, and the trouble with the new day of racial kumbaya that Roberts tried to declare in June of 2013, is that if things had actually changed in the South, that very day was the day that Texas enacts its draconian voter ID bill that preclearance had stopped and that 700,000 Latinos — this isn't me saying this, this is the state of Texas admitting that it knew — that 700,000 Latinos citizens lacked the act the specific papers that the law now required to vote. One group that didn't lack those actual papers, gun owners, because they were allowed to use their gun license, but if you had a student ID or a public housing ID, not so much.
And so Shelby County kickstarts — it liberates all of these legislatures across the South to suddenly do their worst. The prison guard has been removed, and all of those evil, dark forces in American politics are free to burst forth again. And so they do. So when Roberts gets rid of Section 5, effectively, of the Voting Rights Act by freezing the formula that was in Section 4, he says, well, we don't really need this, because we still have Section 2 as a protection. And then the court has gone to work over the last decade in scaling back Section 2, and they've since torn that in half and in half and in half again.
And I think the other crucial case here is the partisan gerrymandering case,Common Cause v. Rucho, back in 2019, in which a number of states had gone to the court over time and said, we've been gerrymandered into oblivion. We need help from the neutral federal courts. And the neutral federal courts had devised several nonpartisan standards that all pointed to when the gerrymander had gone too far.
And John Roberts calls all of this sociological gobbledygook. Says, “Gosh, I can't possibly understand this.” Him with his elite private school degree and Harvard Law degree and Harvard degree, and he closes the federal courts to partisan gerrymandering claims and effectively green lights not only the gerrymanders that had been in place, but the maximal ones that we saw in the 2021 cycle.
And of course, those gerrymanders help create more conservative MAGA caucuses that then pass more insane election laws that the court then blesses as perfectly fine under its interpretation of the Voting Rights Act, and how lawmakers ought to be perfectly free to do whatever they want if they think they're fighting voter fraud — voter fraud that they can't actually identify, but as long as they say it's voter fraud, then they're perfectly fine with this court. And all of it works together. So you know, it's all of these decisions at once that have created such an anti democratic cocktail of minority rule.
ARJUN SINGH:I feel like the way that John Roberts calls himself an umpire, which is clearly not true — maybe to be fair, referees in the NBA and in baseball should just start calling themselves John Roberts when it's very obvious they've made horribly bad calls. How does this kind of culminate in, you know, in 2020 we saw Donald Trump's effort to overturn the election, one of his leading supporters — one of his lawyers, John Eastman was a Federalist Society member, ran a federal society study or debate group at one point in time — the Federalist Society is all over this effort.
And I feel that if you tried to make an argument, which I'm sure John Roberts will, which is, you know, look, I've created a very fancy doctrine and document, and I've cited whatever, you know, I made some effort to make it look like this is this makes sense based on my role as the Chief Justice. This effort by Donald Trump totally blew open, you know, any of that, any semblance of that, and yet, you did have these lawyers all over the place supporting it, supporting different candidates for office who were in favor of it. What did, what did you make of the 2020 effort. And I guess I will just leave it at that. What did you make of that entire effort? Having been reporting on this stuff for such a long time?
DAVID DALEY:I thought it was really predictable, right? I mean, there were a lot of us, I think you all as well, who started reporting in March of 2020 This is how they're going to do it. The plan is going to involve gerrymandered state legislature and tweaking the rules and slowing down the process of certification and trying to send alternate slates of electors and creating a constitutional crisis. I mean it these guys. These guys are smart, but they're not so smart that we can't look ahead and see what they're up to. They're up to the same thing right now. We all see it coming. It's the slow motion car crash.
They were not able to get away with it in 2020 for a handful of reasons, the general election, popular vote was too big in too many places. But also the legal work was really shoddy. It's Rudy Giuliani, you know, half in the bag at the, at the Four Seasons landscaping. You know, it's, you know, it's a clown car. And they filed all these cases too late, right? They brought them all after the election. And if you look at what most of these courts said, they said, Why are you bringing us this now?
And so what I think happened in 2020 is not so much that the courts stepped up and saved American democracy, but that conservatives learned, oh, if we want to do this, we have to do this a little bit differently. We have to bring the cases earlier, and we have to have control of these other boards that handle certification in advance. And so this time around, you've got the white shoe, DC, Constable McCarthy firms and others handling these cases. The adults in the room have got it. They will dress them up with the appropriate Federalist Society hothouse theories.
And the cases have been brought. There's already more than 75 cases in 16 states that the RNC is as either broader as an amicus party too, and you have events unfolding like we see in Georgia right now, right where the state election board, filled with MAGA enthusiasts is trying to slow down the process of certification. And those five weeks between Election Day and the Safe Harbor Day effectively — when you know are crucial — and if you can slow those that process down, if you can kick it into the courts, you can create all kinds of constitutional mischief. I mean, there's any number of scenarios you could see in which the U.S. Supreme Court is, is, is brought into play. And I mean, I, and one could say that it's almost as if they wanted it this way, because this election board in Georgia that is causing this whole mess wouldn't be able to do this if preclearance was still in place.
So, you know, obviously things have not changed in the South, but if we still had preclearance, this board would have to send its changes to the Department of Justice, which would say, “yeah, no.” So this entire threat is not something any of us would have to lose any sleep over. It would just, it would just be wiped away instead, because of John Roberts, it exists, and it's a way of getting the election back to the Supreme Court and John Roberts.
And so 180 million of us are going to vote on November 5, and yet, is it still possible that nine of us end up deciding — the six conservative supermajority on the court, five appointed by presidents that lost the popular vote. I mean, it's not crazy to look at this. It's not crazy to look at everything that they've done over the past couple of decades and say, this is where it's pointing to, and we better be careful before it all slides off the rails.
ARJUN SINGH:Yeah. I mean, that's exactly what I have been thinking about. And then you look at some of the previous things that have come up, the elimination of the Chevron doctrine, which you know required them to defer to federal agencies, and you especially the overturning of Roe v. Wade. I mean, just overturning precedent. And now you have the six people who have a total lock on the Supreme Court.
And so, you know what I mean, what is the safeguard against that? Then, because you do have Democrats, some of them trying. But Joe Biden in particular was, you know, really saying, “well, if I get elected, it will be the safeguard of democracy. It will be this.”
But in a lot of ways, it feels like the master plan. The plot worked. They got the 6-3 on the court. They've given presidents full immunity. That was very clearly directed at Donald Trump, and I'm not, you know, a legal scholar. I didn't go to law school, so I guess I'm wondering, how does this story end? Does it just end with the essentially, six people for until they die, telling us how we're going to be able to do and, you know, invalidating our Congress and our political will? Or is there some mechanism that it doesn't rectify it, but it at least pushes back against that?
DAVID DALEY:No matter where your politics lie, I would think that all Americans would be deeply uncomfortable that any nine Americans should hold this much power in a representative democracy. And indeed, I think the polls show that people are… if you look at the polls, on term limits, on a real ethics clause for these justices, it's upwards of 70 to 75 percent of Americans backing this, including upwards of 70 percent of Republicans.
So this is popular, and we are going to have to reform this court or accept that it intends to rule over our lives. I mean, if Vice President Harris is elected, she's going to have to decide between having an agenda that she can enact through Congress or having an agenda that is blocked by this court every step of the way. She's going to have to step up and fight this court that has become a real renegade, runaway, anti-democratic menace to American democracy, and that, if left unchecked, will continue this way for some time.
So this is a moment for us to be thinking about dramatic Supreme Court reform. We have to be thinking about how we strip a jurisdiction on some cases from these judges. We have to be thinking about how we expand and right size this court, we need to be thinking about real ethics responsibilities that stop these justices from being corrupted and paid by those who have interests before them. It is time to think big and immediately and urgently about all of this.
I mean, Lincoln, in his first inaugural, says the candid citizen must confess that if the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court. The people will have ceased to be their own rulers, and we're dangerously close to that moment right now.
DAVID SIROTA:That was author and investigative journalist David Daley. If you’re not already following our weekly news podcast,Lever Time, you should. It’s already part of your paid subscription to the Lever! Just email us at support@levernews.com and we’ll get you set up.
There will be plenty more MASTER PLANbonus content throughout the season for premium paying subscribers like you. This episode was produced by Ronnie Riccobene with help from Jared Jacang Maher. Thank you so much for supporting MASTER PLAN. Rock the boat.
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essay was originally published in The Atlantic on Aug. 28, 2022 and can be accessed online here.
We Can Be Framers Too
*The Constitution doesn’t have to be something we merely inherit; it could be something we can change ourselves—starting with rewriting the too-stringent rules for making such changes.
The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson, overruling Roe v. Wade, makes its refrain the promise to “return” the abortion question “to the people and their elected representatives.” Concurring in West Virginia v. EPA, which restricts regulators’ ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of “the people’s representatives” rather than “a ruling class of largely unaccountable ‘ministers.’”
In New York State Rifle and Pistol Association v. Bruen, which struck down New York State’s 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Court’s severe, originalist approach to the Second Amendment as a vindication of a judgment “by the people” against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomes—Dobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Act—they all claim to protect the rightful power of “the people.”
Liberal critics, in turn, have appealed to democracy in attacking the Court as “radical” and “illegitimate.” Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic “people” the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court, deny it jurisdiction over certain cases, or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and ’60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a “second bill of rights,” including rights to good work and economic security; or even an “abolition constitution” rooted in radical traditions of freedom and equality.
But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what they—we—believe American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.
The feeling that the Court is dangerously abusing its power is a new experience for many of today’s liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats’ grip on national power.
That’s why, in his first inaugural address, Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to “put the fear of God into judges” who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal laws—a proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic, lamenting of the pro-business jurisprudence of his time, “we have never had a more irresponsible Supreme Court.”
What has been unusual in the past 70 years—that is, all of living memory—is that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Act’s Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.
The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Court’s power, which denies the Court’s legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges, the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Today’s liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.
The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges’ life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular vote—something that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trump’s presidency represented significantly less than half of the country’s population).
But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.
There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, it’s no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past century—upholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear arms—have all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.
It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words “We the People.” That “we” is the subject of the first sentence of the Constitution, and it goes on to “ordain and establish” everything that follows. On its own terms, it is law because “we” made it law.
But that “we” isn’t us. When that language was ratified in 1789, its “we” was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.
As striking as the demographic differences are between who counted as “the people” in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If today’s Americans could freely decide that the Second Amendment’s “right of the People to keep and bear arms” should remain our fundamental law today, it wouldn’t really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.
Indeed, even if those past political processes had been much more inclusive, they would still belong to the past. If we take seriously the democratic principle of ratification that the phrase “We the People” suggests, then nothing can make another generation’s fundamental law count as ours except our consenting to it. In American constitutional law, silence—the fact that we have not amended the Constitution—counts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.
Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws, words like liberty, or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices’ opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called “incantation and abracadabra.”
At the moment, the most notorious abracadabra is originalism. The method of the Court’s recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis inDobbsas more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worship—worse, the selective worship of some Americans’ white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices’ power as compatible with democracy—at least notionally.
Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we haven’t made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.
Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell, and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?
Each side can clearly see Du Bois’s abracadabra in the other. Each is partly right about the other’s democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principles—a colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders’ minds).
But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.
The real irony in originalism’s march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the country’s top institutions. It has done so because conservatives in the 1970s—the last decade when it was really possible to regard courts as vehicles of broad progressive reform—saw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.
Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbsopinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alito’s 79 pages, plus appendices, is how the Supreme Court writes “6–3.” That is six votes out of some 330 million Americans. But then again, Obergefellhad only five.
So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.
A more directly democratic approach would bring that pregnant phrase “We the People” back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.
The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senate’s two-seat-per-state structure—both major vehicles for minority rule.
There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitution’s Framers, such as James Wilson (also an early Supreme Court justice), who insisted that “the people” would be able to change the Constitution “whenever and however they please. This is a right of which no positive institution can ever deprive them.”
Although James Madison wrote that the Constitution he did so much to design was marked by “the total of exclusion of the people in their collective capacity” from any share in government—that is, our system boxes out direct democracy—he also held that the power “to alter or abolish its established government” always resided with the majority. (He justified the Constitution’s arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederation—a position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitution’s first words indicate, because they are the people’s commitments.
It’s fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalism’s basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalism’s basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problems—and dissolve the need for both originalism and living constitutionalism as we know them.
How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe, authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a “we.”
Constitutional conventions have about the same odor in liberal circles as “citizen sheriffs” and the posse comitatus—cranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservative—quite the contrary—and if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.
The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.
Could it really happen? After all, we start out in the world of Article V’s high barrier to change.
The first thing to see is that it will never happen if we don’t think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.
Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.
What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?
There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moment’s passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional process—perhaps with some clarification that, for instance, “freedom of speech” does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.
Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rule—judicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.
About the author: Jedediah Britton-Purdy is a professor at Duke Law School. His books include AfterNature and This Land Is Our Land, and, most recently, Two Cheers for Politics: Why Democracy Is Flawed, Frightening—and Our Best Hope.2022
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WTF dem orig?!
an 12 23
Judge's ruling on gun serial numbers highlights 'deadly' impact of right-wing Supreme Court
October 15, 2022
Legal experts said Friday that a federal judge's ruling in West Virginia illustrates the danger posed by the U.S. Supreme Court's right wing majority, which ruled this year in New York State Rifle & Pistol Association v. Bruen that restrictions on firearms must fall within the so-called "historical tradition" of gun laws.
U.S. District Judge Joseph Goodwin, who was appointed to the Southern District of West Virginia by former Democratic President Bill Clinton, ruledagainst a federal law prohibiting people from possessing firearms with serial numbers that have been "altered, obliterated, or removed."
"Serial numbers were largely unknown to the Framers, Goodwin wrote. And so the Second Amendment confers a right to remove them from modern weapons."
Serial numbers have been required for guns since the passage of the Gun Control Act of 1968 and are intended to prevent the illegal sale of guns and to allowing law enforcement to trace firearms.
But basing his ruling on the majority Supreme Court opinionwritten by Justice Clarence Thomas in June, Goodwin said Wednesday that requiring serial numbers is not part of the "historical tradition of firearm regulation" and therefore runs afoul of the Second Amendment.
In his majority opinion in Bruen, which overturned New York's state law restricting the concealed carry of firearms in public, Thomas wrote that for a gun control law to stand, the federal, state, or local government "must affirmatively prove that its firearm regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."
Goodwin's opinion, said Demand Justice, which advocates for Supreme Court reform, demonstrates the far-reaching impact the Bruen ruling could have on gun laws across the country.
"That radical ruling is impacting measures as basic as a requirement that guns have serial numbers," said the group.
The case heard by Goodwin originated with a traffic stop in Charleston, West Virginia during which police found a gun with the serial number removed. The driver, Randy Price, had also been convicted of a felony.
Price argued in court that he had a constitutional right to have the firearm, while lawyers for the federal government said the law regarding serial numbers was a "commercial regulation" that did not violate the Second Amendment.
On Thursday, Slate journalist Mark Joseph Stern wrote that while Goodwin's ruling "might sound bizarre... his analysis closely follows Thomas' test" that requires the government to prove a gun regulation had a historical "analogue" in 1791, when the Second Amendment was ratified, or 1868, when it was imposed throughout the U.S.:
The only remaining question is whether the government could find an analogous regulation from 1791 or 1868 that restricted the possession of guns with an altered serial number. It could not, for a fairly obvious reason: Serial numbers only became common following the mass production of firearms, which took off in the decades after the Civil War.
Serial numbers were largely unknown to the Framers, Goodwin wrote. And so the Second Amendment confers a right to remove them from modern weapons.
When Bruen was handed down in June, Stern called the ruling "a revolution in Second Amendment law" which would ultimately go "so, so far beyond concealed carry."
Goodwin noted in his opinion on Wednesday that firearms that can't be traced using a serial number "are likely to be used in violent crime and therefore a prohibition on their possession is desirable," but said that argument "is the exact type of means-end reasoning the Supreme Court has forbidden me from considering."
Stern suggested that parts of Goodwin's opinion read "as if the judge is desperate to show readers just how dangerous and radical [the Bruen] ruling is."
According to the Supreme Court, Stern wrote, "all that counts is that serial number laws arose over the last century, so they are too modern to comport with the Second Amendment. Goodwin made this point over and over again; it almost sounded like he was quietly protesting the extreme and dangerous results demanded by the Bruen test."
"His decision thus doubled as a warning," he added. "The Supreme Court's Second Amendment jurisprudence has grown so radical that it now shields criminals trying to conceal their involvement in a violent crime."
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https://www.newyorker.com/news/annals-of-education/how-the-federalist-society-won
a few minutes before Roe v. Wade was overturned, Sherif Girgis sat in his office at Notre Dame Law School, desperately clicking refresh on the Supreme Court’s Web site. Girgis had been looking forward to this precise moment for months. He’d been gaming out the arguments for years, really.
Conservatives of an older generation, who suffered a Supreme Court betrayal in 1992—when a trifecta of Republican-appointed judges upheld the constitutional right to an abortion, in Planned Parenthood v. Casey—couldn’t believe that Roe would ever truly fall. But Girgis, who is thirty-six, came up in a different era. “I was in kindergarten when Casey was decided,” he said. Unlike his jaded elders, he believed that the Court would one day follow through on the simple, powerful idea that animates the conservative legal movement: that a judge’s job is not to make value judgments or to speculate about the potential consequences of his or her decisions but, rather, to decide cases by looking solely at how the Constitution was understood at the time it was written. This method of interpretation, called originalism, would inevitably lead to the end of Roe.
girgis, a professor who specializes in philosophy and the law, embodies a young, energized, traditionalist wing of the conservative legal movement that will likely be galvanized by Dobbs v. Jackson Women’s Health Organization, the decision that overturned the constitutional right to abortion. Early in his career, Girgis clerked for Samuel Alito, the Justice who wrote the majority decision in Dobbs. He’s a rising star in the Federalist Society, a powerful network of conservatives and libertarians that has a chapter at many major law schools, as well as dozens of professional chapters across the country. The organization prides itself on being a forum for ideas, even those which some conservatives hate, which is part of what drew Girgis to become a member when he was a student at Yale Law School, in 2011. “The Federalist Society is not a ghetto within each law school,” he said. “At its best, it is—or ought to be—a cheerful and willing debating partner.” Girgis is a frequent speaker at chapter events. A longtime member described him to me as a “brilliant, beautiful soul.” One of his mentors, Princeton’s Robert George—a heavyweight in the relatively small world of élite conservative academics—frequently hypes him on Twitter, like a coach cheering on Rocky in the ring.
In 1982, when the Federalist Society was founded, the conservative legal movement was still finding its footing. Law-school campuses were predominantly liberal, and there was a prevailing sense among students and professors that the conclusions in Roe and other major Supreme Court decisions of the prior thirty years—on issues such as birth control, racial integration, and voting rights—were both morally good and legally correct. But an ideological counter-revolution was beginning. Lee Liberman Otis—one of the Federalist Society’s founders, who was then a law student at theUniversity of Chicago—recalled thinking, It’s funny that there are these ideas about law which Reagan seemed to have run on, in part, and nobody’s talking about them. She helped organize the first Federalist Society conference; its speakers included Antonin Scalia, then a law professor, and Theodore Olson, then an Assistant Attorney General in the Reagan Administration. Otis could tell that the conference was the start of something. Four years later, Scalia would ascend to a seat on the Supreme Court, and Olson would eventually become one of the country’s most accomplished Supreme Court litigators.
“I don’t recall Roe being an issue in any such conversations I had concerning [the] creation of Fed Soc,” Olsonwrote to me, in an e-mail. “It was all about creating a forum/venue for debate. Not taking sides on any particular issue.” And yet Roe symbolized something to the Federalist Society’s founding members. “For someone like me, a lawyer, Roe was really not about abortion,” John McGinnis, a conservative law professor at Northwestern University, said. (McGinnis was an early member of Harvard’s Federalist Society chapter, back when it could fit in a “broom closet,” he said.)
Roe, he told me, “was the culmination of the Court diverging from the text of the Constitutionand essentially—this is not too strong of a word—fabricating the law.” One of the core holdings of the decision, that abortion had to remain legal before the point of fetal viability, seemed to conservatives to be summoned out of thin air. Some prominent left-leaning legal scholars, despite being pleased with the outcome of the decision, said the same: John Hart Ely commented that Roe was “not constitutional law and gives almost no sense of an obligation to try to be.” (The current conservative majority on the Court happily cited this line when overturning Roe.)
During the next four decades, the conservative legal movement set about radically changing the way that the law was talked about. They promoted a mode of legal interpretation that was purportedly value-neutral, based on their understanding of what the Founders wrote. The movement’s most powerful tool was its people: the Federalist Society started functioning as a kind of Rolodex for legal jobs around the country, especially clerkships and judgeships. And yet the process was slow going. In 1987, the U.S. Senate rejected the nomination of Robert Bork, an early Federalist Society figure, to the Supreme Court, based in part on his strong opposition to the Civil Rights Act of 1964.
Anthony Kennedy and David Souter—Republican appointees without strong Federalist Society ties—drifted to the left during their time on the bench, siding with their liberal peers in Casey, along with Sandra Day O’Connor, Reagan’s first nominee to the Court. Slowly, though, originalist Justices started taking their seats.Today, all six members of the conservative majority run in Federalist Society circles. All voted to effectively end the federal abortion rights that have been in place for the past fifty years.
The Dobbs case also illustrates the Federalist Society’s broader influence beyond judicial appointments. The conservative movement now has a legal intelligentsia of academics, writers, and national advocacy groups who fundamentally shaped how Roe was overturned. The Alliance Defending Freedom (A.D.F.), a conservative Christian legal firm, helped Mississippi legislators draft the fifteen-week abortion ban that eventually made its way to the Supreme Court, which the Justices upheld in Dobbs, and then later served alongside Mississippi’s legal team as it presented its arguments to the Court.A.D.F.’s general counsel, Kristen Waggoner, a Federalist Society member, told me that the firm closely monitored the scholarship on abortion while shaping Mississippi’s litigation strategy—which was led by another Federalist Society regular, Mississippi’s solicitor general, Scott Stewart.
The Court depends on this scholarship, too; the Dobbs decision is heavy with footnotes debating the minutiae of how abortion was historically viewed. To Girgis, whose own scholarship has touched on subjects such as the nature of marriage, religious liberty, and constitutional principles, this is what’s compelling about his job: “The legal academy is not like other academic disciplines, because it is tied to the real world in a very concrete way,” he said. “It’s at least supposed to be serving the bench and bar.” Dobbs is exciting, he added, in part because it shows that “a theory of interpretation can actually lead to real-world results.”
While originalism may sound intuitive and straightforward, many in the legal world feel cynical about its true aims. Critics of the conservative legal movement view the approach as a theoretical fig leaf used to justify decisions that line up with conservatives’ policy preferences. When I asked Girgis about this, he said that originalism is supposed to achieve the opposite: it’s a way to make sure the law doesn’t just reflect the preferences of the ruling party. (Or, as Girgis put it, to guarantee that judges “don’t cheat.”) Dobbs was satisfying, in his view, precisely because it was argued according to a set legal theory that has clear rules and little room for personal opinion. To Girgis, it’s not a sign of bad faith that originalist decisions often reach conservative outcomes, because both are philosophical approaches anchored in the past.
still, other critics believe that originalism, even when applied in good faith, often has unacceptably harmful consequences. The three liberal Justices’ dissent in Dobbs is in part a scathing critique of the originalist approach: the Founders, they wrote, “did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification . . . it consigns women to second-class citizenship.”
Conservatives don’t always agree on how originalism should be applied. For example, Neil Gorsuch, the originalist all-star who replaced Scalia, wrote the 2020 decision that extended workplace protections to L.G.B.T.Q. employees. In the opinion, joined by Chief Justice John Roberts and the Court’s liberal Justices, Gorsuch made his argument on strictly textualist grounds, but the outcome rankled many conservatives who believed that nineteen-sixties-era anti-discrimination laws were never intended or understood to protect gay and trans people. During the same term, Roberts put the brakes on overturning Roe out of a desire for the Court to practice restraint, despite eagerness from the movement to see that decision in the ash heap of history; he continued to make his uneasiness clear in his concurrence in Dobbs, even as the majority overruled him.
Common wisdom has it that the Federalist Society is roughly divided between libertarians and more traditionalist types—religious conservatives like Girgis, who converted to Catholicism in high school. Some on the traditionalist side have claimed that the occasionally unexpected outcomes of originalism demonstrate the movement’s failures—that the theory doesn’t necessarily lead to moral results in the hardest cases. Girgis’s loose impression is that among law students and Federalist Society members there’s more of an appetite for a style of legal interpretation which would promote conservatives’ vision of a good society, along the lines of Adrian Vermeule’s “common-good constitutionalism.”
And yet Dobbs “was a huge boost for the conservative legal movement as a practical, sociological matter,” Girgis said. The decision proved that the traditionalists inside of the conservative legal movement aren’t just the Charlie Brown to a libertarian Lucy’s football; the long strategy of creating an alternative intellectual milieu in the law actually succeeded.
Now that conservatives have won, the legal work begins. One effect of Roe and Casey was to make abortion-related policy and scholarship feel somewhat low-stakes. Conservative legislators could introduce any bill they wanted, knowing it would eventually be struck down by the courts. Scholars could make any theoretical argument they wanted, knowing that Roe’s viability standard would ultimately guide abortion jurisprudence. But, in post-Roe America, “the legal nerd in me is intrigued by the very difficult and mostly unsettled legal questions about the kinds of policies that states are likely to pursue,” Girgis said. Can Texas stop its residents from travelling to another state to obtain an abortion? Can Mississippi ban abortion drugs, even when they’re approved by the Food and Drug Administration? Can the federal government limit or expand abortion access without an act of Congress? These questions have taken on “a new practical urgency, and there’s not a ton of law on some of them,” Girgis said. “That combination is exciting for me. Because it means that your expertise is both needed and practically relevant.”
But, although the conservative legal movement was united in its belief that abortion is not a constitutionally protected right, it has always been divided on the question of whether abortion should be illegal. In May, leaders of some of the top pro-life activist groups in the country signed a letter opposing “any measure seeking to criminalize or punish women” for abortions. This came after a Louisiana legislator had introduced a bill allowing prosecutors to charge women who terminated their pregnancies with murder. “The penalties that should be imposed should be on the supply side—essentially those who are profiting from the death of children,” Waggoner, of A.D.F., told me. The Louisiana bill died, but there’s only so much control that legal élites will have on the next phase of abortion policy in America. “Part of the problem is that, on abortion, there aren’t many people in the academy leading the strategy” when it comes to legislation, Mary Ziegler, a professor of law at the University of California, Davis, said. When I asked Girgis whether state legislators actually listen to guys like him when they’re drafting new laws, he laughed. “I suspect that many don’t care,” he said. “But I also suspect that at least some do, if only because they want a good assessment of how likely their law is to be held unconstitutional by courts.” (That being said, he added, “Academics very easily overestimate their own relevance.”)
Some people in the conservative legal movement are more philosophical about the consequences of overturning Roe. In their view, the error of the original ruling—a “constitutional deformity,” as one Federalist Society insider put it—has been corrected. Now the democratic process begins. “I do think that things tend to settle out,” Otis, the Federalist Society founder, who now leads the organization’s faculty division, said. “By the time a law gets through, it does usually reflect, when it’s adopted, the views of the people.”
Girgis is usually cautious not to inject his personal views into his legal analysis. But, a few days after Dobbs came out, he briefly traded the detached voice of a legal academic for that of someone who cares deeply about the pro-life cause. “A year from now, there will be infants going from milk to soft foods because Dobbs triggered laws and shuttered clinics on Friday and not Monday,” he wrote, on the popular legal Web site SCOTUSblog. “Now gestating, they’ll learn to walk, catch fireflies, fall in love, comb gray hair, because of appointments canceled last Friday. Not just by good fortune but—for the first time in generations—by legal right.” The legal world he was writing for still largely misunderstands the moral motivations on the conservative side, he told me: “The moral stakes on both sides of the issue are about to become much more visible and textured for everybody.” Girgis, who has two young kids and another due in September, said that as a parent “you have a more immediate encounter with the nature of human life.But you also have a more immediate encounter with the potential burdens of parenthood, and the ways that they make very serious and life-altering demands on people.” It’s an insight that would never show up in an originalist legal decision—that moments like this have consequences.
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THE WEEKEND INTERVIEW
Samuel Alito, the Supreme Court’s Plain-Spoken Defender
He has emerged as an important justice with a distinctive interpretive method that is pragmatic yet rooted in originalism and textualism.
By David B. Rivkin Jr. and
James Taranto
July 28, 2023
via realclear
the Supreme Court usually makes news by making decisions, and it’s done plenty of that lately. In its first two terms with a 6-3 conservative majority,the justices have revisited old precedents and established new ones [THAT IS IGNORED STARE DECISIS] on abortion, gun rights, racial discrimination, freedom of speech and religion, the power of unelected federal regulators and more.
By comparison with the previous eight decades or so, the court has frequently declined to defer toelite political opinion, and as a result it has made news in other ways. A draft abortion opinion was leaked to the press. An armed man was arrested outside the home of Justice Brett Kavanaugh and charged with attempted assassination. The justices have come under attack from President Biden (“this is not a normal court”) and Democratic lawmakers. Partisan journalists have tried to gin up “ethics” scandals and incite animus against disfavored justices.
“I marvel at all the nonsense that has been written about me in the last year,” Justice Samuel Alitosays during an early July interview at the Journal’s New York offices. In the face of a political onslaught, he observes, “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”
He does so with a candor that is refreshing and can be startling. He spoke with us on the record for four hours in two wide-ranging sessions, the first in April in his chambers at the court. In the interim, he wrote an op-ed for these pages responding in detail to a hit piece from ProPublica,a self-styled “independent, nonprofit newsroomthat produces investigative journalism with moral force.” Many of the court’s critics claim to want more “transparency.” Their hostile reactions to our April interview and his June op-ed suggest—no surprise—that they’re really after ideologically congenial rulings, not to mention conformist press coverage.
Justice Alito, 73, was appointed in early 2006 and is now the second most senior associate justice. He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.
“There are very serious differences” in how the six conservative justices approach cases, Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas “gives less weight to stare decisis than a lot of other justices.” It is, “in its way, a virtue of his jurisprudence,” Justice Alito says. “He sticks to his guns.”
That’s why Justice Thomas writes many lone concurrences. In Dobbs v. Jackson Women’s Health Organization (2022), he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including those involving same-sex marriage, contraception and consensual sodomy. Justice Alito’s majority opinion carefully distinguished those issues from abortion. Justice Thomas often disregards precedents with which he disagrees and follows his own route to the majority’s destination—to cite a recurring example, by relying on the 14th Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. The disadvantage of this approach, Justice Alito says, “is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule.”
Justice Gorsuch has an ornery streak that has shown itself in cases involving Indian law, crime and discrimination. “He’s definitely not a consequentialist,” Justice Alito says of his colleague—meaning he is less concerned with the real-world effects of following his principles.
An example is Ramos v. Louisiana (2020), which overturned a pair of 1972 precedents and held that the Sixth Amendment’s right to a jury trial requires unanimity for a finding of guilt in state court. Every state but Louisiana and Oregon already required unanimous verdicts, but “Ramospotentially affected many, many criminal convictions that had been obtained . . . using nonunanimous jury verdicts, which had been specifically approved by the Supreme Court,” Justice Alito says. “Overruling those decisions had potentially vast consequences. . . . That was not a big factor in his analysis.”
As for Chief Justice John Roberts, “he puts a high premium on consensus. He rarely dissents.” He filed no outright dissenting opinions in the 2022-23 term and only one in 2021-22. He also “has expressed a very strong tendency to protect the prerogatives of the judiciary,” as in Bank Markazi v. Peterson(2016). The court upheld a law directing that Iranian assets targeted by successful plaintiffs in a specific terrorism case be seized to pay the judgment. The chief justice dissented against what he called an unacceptable intrusion on judicial power: “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases.”
On the liberal side of the court, by contrast, “I don’t see that there’s a difference in interpretive method,” Justice Alito says. Yet he emphasizes that “we don’t always line up 6-3, 5-4, the way some people tend to think. If you look at all the cases, there are cases where the lineup is unusual.” Chief Justice Roberts wrote two election-law decisions this term, Allen v. Milliganand Moore v. Harper, in which he was joined by the three liberals and Justice Kavanaugh, along with Justice Amy Coney Barrett in the latter case.
Another prime example is National Pork Producers Council v. Ross, which upheld a California law banning the sale of meat from pigs that are “confined in a cruel manner”—almost all of which is produced in other states. The council argued that the law violated the Dormant Commerce Clause, a doctrine that limits states’ authority to enact policies that burden interstate commerce.
Justice Alito, who agreed with that view, says “it’s no secret that Justice Thomas and Justice Gorsuch don’t think that there is such a thing as the Dormant Commerce Clause.” Justices Barrett, Sonia Sotomayor and Elena Kagan signed on to parts of Justice Gorsuch’s opinion, providing a majority that let the law stand.
“I have not joined Justice Thomas, Justice [Antonin] Scalia, Justice Gorsuch in saying we should get rid of the Dormant Commerce Clause,” Justice Alito says. “I’ve written this in the Tennessee wine case—that the Constitution surely was meant to contain some principle that prevents the balkanization of the economy. That was one of the main reasons for calling the Constitutional Convention in Philadelphia.”
He refers to his 7-2 ruling in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019). In dissent, Justices Gorsuch and Thomas cited the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate alcohol. Justice Alito’s majority opinion treated that provision “as one part of a unified constitutional scheme,” within which the lawmakers who ratified the 21st Amendment understood that “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.”
That demonstrates a central feature of Justice Alito’s jurisprudence: its emphasis on historical context. “I think history often tells us what the Constitution means,” he says, “or at least it can tell us what the Constitution doesn’t mean.” His dissent in Obergefell v. Hodges(2015) is a case in point. “It’s perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage,” he says. Before this century, “no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage.” The first country to legalize it was the Netherlands, effective in 2001.
The same attention to history informs Justice Alito’s textualism. “I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically,” he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” covers “sexual orientation and gender identity.”
Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is “because of” sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity “hardly existed as a concept, even among professionals in the field,” as Justice Alito says. “When it’s very clear that the author of the text . . . cannot have meant something, then I don’t think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result.”
Justice Alito’s respect for precedent has limits: “Some decisions—and I think that Roeand Caseyfell in this category—are so egregiously wrong, so clearly wrong, that’s a very strong factor in support of overruling.” Those are the 1973 and 1992 abortion cases that Dobbs overturned, with Justice Alito writing for a majority of five. Chief Justice Roberts provided a sixth vote to uphold Mississippi’s 15-week abortion ban but urged “a more measured course” that would narrow the precedents while deferring the question of whether to overturn them altogether.
Justice Alito has been known to take a similarly incremental approach. His opinion for the court in Janus v. Afscme (2018) held that compelling public employees to pay union dues violated the First Amendment, and it overturned a 1977 precedent, Abood v. Detroit Board of Education. A foretaste came in Harris v. Quinn(2014), also written by Justice Alito, which subjected Abood to a withering critique but left it standing.
“The question how broad a decision should be—should we overrule a prior precedent when we really don’t have to in order to decide this case?—it’s a judgment call,” he says. “There can be reasons for deciding the case more narrowly. Maybe we’re not sure whether it should be overruled. Maybe we think it would be better if the issue were highlighted for others to address first—scholars, lower-court decisions. Maybe it’s a question of what a majority of the court is willing to go along with.”
That last contingency sometimes depends on events more than philosophy. Justice Ruth Bader Ginsburg died in September 2020, and President Trump appointed Justice Barrett to succeed her. Had Ginsburg lived a few months longer, the chief justice’s tentative approach might have prevailed in Dobbs. Or perhaps the justices wouldn’t have taken the case.
In the 2023-24 term, the court will consider whether to overturnChevron v. NRDC (1984), an increasingly disputed precedent that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes. Justice Alito is careful not to state a position on Chevron,but he does make a pertinent broader point about precedent: “I’m not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.”
He says that’s what his colleagues did last month in U.S. v. Texas, the term’s only case that had him alone in dissent. The court threw out Texas’ challenge to lax Biden administration immigration guidelines on the ground that the state lacked standing to challenge them in court. But Justice Alito says Texas’ claim of injury “was the same as—in fact, stronger than—that of Massachusetts in Massachusetts v. EPA,” a 2007 case that opened the door to federal regulation of greenhouse gases. “The court just hardly said a word about Massachusetts v. EPA.”
The Biden policies suspended all enforcement measures for certain categories of illegal aliens, despite statutory language to the contrary—a clear violation, in Justice Alito’s view, of the president’s express constitutional duty to ensure that the law be faithfully executed. How did all eight of his colleagues end up on the other side? “I have no idea,” he says. “I honestly don’t. Why did it turn out that way? Because it involves immigration? Because it’s vaguely connected to Trump? I don’t know. I don’t know what the explanation is.”
After the justices reconvene on the first Monday in October, they will continue making news in the usual way. Among the issues on the fall docket, along with the reconsideration of Chevron: whether South Carolina impermissibly gerrymandered its congressional districts by race, whether the Consumer Financial Protection Bureau’s funding scheme is unconstitutional,whether Congress can tax unrealized investment income, and whether someone subject to a domestic-violence restraining order can be deprived of his right to possess firearms. (Mr. Rivkin and a law partner, Andrew Grossman, represent the appellants in Moore v. U.S.,the tax case.)
The attacks on the court are sure to keep coming as well. Last week the Senate Judiciary Committee voted along party lines to advance Sen. Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act, which purports to impose on the justices and their clerks regulations “at least as rigorous as the House and Senate disclosure rules.”
Justice Alito says he voluntarily follows disclosure statutes that apply to lower-court judges and executive-branch officials; so do the other justices.But he notes that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
Do the other justices agree? “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”
The political branches have other weapons they could deploy against the court. The Constitution doesn’t specify the number of justices, so Congress could pack the court by enacting legislation to expand its size. Last week a pair of leftist law professors issued an “open letter” urging President Biden to “restrain MAGA justices” by applying their rulings as narrowly as possible. The day the court decided Biden v. Nebraska, striking down Mr. Biden’s student-loan forgiveness plan, the president announced that he was undertaking legally questionable alternatives.
Justice Alito wonders if outright defiance may be in the offing for the first time since the aftermath of Brown v. Board of Education(1954): “If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown.”
Will the justices’ recent rulings endure? The court shows little sign of yielding to external pressure, but its three liberal members stand ready to overturn many recent precedents from which they dissented. Whether they’ll have the opportunity likely depends on who holds the White House and the Senate when future high-court vacancies arise. About that prospect, Justice Alito demurs: “We are very bad political pundits.”
Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Taranto is the Journal’s editorial features editor.
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Legal experts said Friday that a federal judge's ruling in West Virginia illustrates the danger posed by the U.S. Supreme Court's right wing majority, which ruled this year in New York State Rifle & Pistol Association v. Bruen that restrictions on firearms must fall within the so-called "historical tradition" of gun laws.
U.S. District Judge Joseph Goodwin, who was appointed to the Southern District of West Virginia by former Democratic President Bill Clinton, ruledagainst a federal law prohibiting people from possessing firearms with serial numbers that have been "altered, obliterated, or removed."
"Serial numbers were largely unknown to the Framers, Goodwin wrote. And so the Second Amendment confers a right to remove them from modern weapons."
Serial numbers have been required for guns since the passage of the Gun Control Act of 1968 and are intended to prevent the illegal sale of guns and to allowing law enforcement to trace firearms.
But basing his ruling on the majority Supreme Court opinionwritten by Justice Clarence Thomas in June, Goodwin said Wednesday that requiring serial numbers is not part of the "historical tradition of firearm regulation" and therefore runs afoul of the Second Amendment.
In his majority opinion in Bruen, which overturned New York's state law restricting the concealed carry of firearms in public, Thomas wrote that for a gun control law to stand, the federal, state, or local government "must affirmatively prove that its firearm regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."
Goodwin's opinion, said Demand Justice, which advocates for Supreme Court reform, demonstrates the far-reaching impact the Bruen ruling could have on gun laws across the country.
"That radical ruling is impacting measures as basic as a requirement that guns have serial numbers," said the group.
The case heard by Goodwin originated with a traffic stop in Charleston, West Virginia during which police found a gun with the serial number removed. The driver, Randy Price, had also been convicted of a felony.
Price argued in court that he had a constitutional right to have the firearm, while lawyers for the federal government said the law regarding serial numbers was a "commercial regulation" that did not violate the Second Amendment.
On Thursday, Slate journalist Mark Joseph Stern wrote that while Goodwin's ruling "might sound bizarre... his analysis closely follows Thomas' test" that requires the government to prove a gun regulation had a historical "analogue" in 1791, when the Second Amendment was ratified, or 1868, when it was imposed throughout the U.S.:
The only remaining question is whether the government could find an analogous regulation from 1791 or 1868 that restricted the possession of guns with an altered serial number. It could not, for a fairly obvious reason: Serial numbers only became common following the mass production of firearms, which took off in the decades after the Civil War.
Serial numbers were largely unknown to the Framers, Goodwin wrote. And so the Second Amendment confers a right to remove them from modern weapons.
When Bruen was handed down in June, Stern called the ruling "a revolution in Second Amendment law" which would ultimately go "so, so far beyond concealed carry."
Goodwin noted in his opinion on Wednesday that firearms that can't be traced using a serial number "are likely to be used in violent crime and therefore a prohibition on their possession is desirable," but said that argument "is the exact type of means-end reasoning the Supreme Court has forbidden me from considering."
Stern suggested that parts of Goodwin's opinion read "as if the judge is desperate to show readers just how dangerous and radical [the Bruen] ruling is."
According to the Supreme Court, Stern wrote, "all that counts is that serial number laws arose over the last century, so they are too modern to comport with the Second Amendment. Goodwin made this point over and over again; it almost sounded like he was quietly protesting the extreme and dangerous results demanded by the Bruen test."
"His decision thus doubled as a warning," he added. "The Supreme Court's Second Amendment jurisprudence has grown so radical that it now shields criminals trying to conceal their involvement in a violent crime."
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https://www.alternet.org/supreme-court-robert-borks-revenge/
This is the first of a multi-part Dig series, The Supreme Court’s War on the Future, investigating how the Supreme Court was remade in the image of Robert Bork.
To fully appreciate and understand the Supreme Court’s hard cut to extremism, start with the failed nomination of Robert Bork in 1987. Bork never made it to the summit of the judiciary, but the legal theory of “originalism” he pioneered now thoroughly dominates the bench.
The Supreme Court’s controlling majority of six Republican activists has embraced originalism as an article of faith and practice. Under the stewardship of Chief Justice John Roberts, the court has deployed its tools and techniques to reinterpret the Constitution and create a legacy of legal devastation with a series of landmark rulings on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion and campaign finance. The court’s current session, which opened in early October, promises to deliver more of the same, with cases on “religious liberty” and LGBTQ discrimination, the “independent state legislature” doctrine, affirmative action and more.
Roberts and company are Bork’s ideological offspring and revenge. Their jurisprudence is the culmination of a project that began with Bork long before his rejection by the Senate.
Until his failed Supreme Court nomination, Bork had a storied career. In March 1973, while on hiatus from Yale, Bork joined the Nixon administration as solicitor general. In October of that year, he was named acting attorney general and subsequently followed Nixon’s orders to fire Archibald Cox, the first Watergate special prosecutor, in what became known as the “Saturday Night Massacre”. In 1982, Reagan appointed Bork to the District of Columbia Circuit Court of Appeals, a position he held until 1988.
As a primary architect of originalism, Bork had become by the mid-1980s — along with Ed Meese, Reagan’s attorney general — the face of a legal counterrevolution aimed at reversing the expansion of civil rights and liberties that had been achieved during Chief Justice Earl Warren’s tenure on the court (1953-1969). His mission was to turn back the judicial clock to a pre-New Deal version of the United States.
A prolific writer as both an academic and an appellate judge, Bork argued at various points in his career that the Constitution contained no implied right to privacy, that Roe v. Wade was wrongly decided, and the Civil Rights Act of 1964 was unconstitutional. He also rejected the “one person, one vote” principle of legislative districting. Bork’s outspokenness and abrasive demeanor set him apart from the growing corps of conservative lawyers and legal scholars that were coalescing in the 1980s, making him a vulnerable target for Democrats determined to keep him off the nation’s highest judicial body.
* * *
The campaign to torpedo Bork’s nomination took shape quickly. On July 1, 1987, the day
, Sen. Ted Kennedy (D-Mass) took to the senate floor to denounce Bork’s selection to replace retiring conservative jurist Justice Lewis Powell. (Powell is best remembered in progressive circles for a confidential memo he penned in 1971 urging business leaders to become more involved in high-stakes litigation and the selection of judges, advice that led to the formation of institutions such as the Business Roundtable, the Heritage Foundation, the Pacific Legal Foundation, the Cato Institute, the Federalist Society and the Chamber of Commerce National Litigation Center.)
In words that would come to doom Bork’s nomination and spark a roiling debate about originalism that continues to this day, Kennedy decried what he called “Robert Bork’s America” as “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
For 12days in September, the Senate Judiciary Committee debated Bork’s qualifications, and heard five days of candid testimony from Bork himself. Much of the scrutiny focused on originalism as a method of constitutional interpretation and judicial decision-making. The prominent constitutional scholars that testified against Bork included Professor Laurence Tribe of Harvard and Professor Philip Kurland of the University of Chicago, who had worked as a consultant to the Senate Judiciary Committee during the Watergate investigation.
Outside the D.C. Beltway, another fierce battle took place. By the time the Senate hearings commenced, anti-Bork forces had raised a war chest of $12 million. In a manner similar to today’s political campaigns, the money was spent on focus groups, opinion polls, media consultants and especially on print, radio and TV advertising.
A newspaper ad taken out by the National Abortion Rights Action League asserted a vote for Bork was the equivalent of voting for a politician who threatened to reverse “every advance women have made in the 20th century.” Similar ads were placed by the National Education Association and Planned Parenthood.
Most devastating of all was a 60-second
paid for by People for the American Way and narrated by the famed actor Gregory Peck. In his best Atticus Finch voice, Peck sounded the tocsin:
"Robert Bork wants to be a Supreme Court justice, but the record shows he has a strange idea of what justice is. He defended poll taxes and literacy tests which kept many Americans from voting. He opposed a civil rights law that ended 'whites only' signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks that freedom of speech does not apply to literature and art and music. Robert Bork could have the last word on your rights as citizens. But the Senate has the last word on him.”
On the other side of the divide, Reagan went to great lengths to salvage the nomination, describing Bork’s appointment as his “top domestic priority.” But even the “Great Communicator” couldn’t get his message to resonate. Public opinion, which trended slightly in favor of Bork in early September, turned decisively against him by the end of the month. A Tribune Media poll released on Sept. 28 showed the public opposed the nomination by nearly a 2-to-1 margin.
Bork’s prospects officially came to an end on Oct. 23, 1987. With six Republicans crossing party lines, the full Senate turned thumbs down against him by a vote of 58-42, the most lopsided vote against a high court candidate in U.S. history. His fall from grace was colossal. Ever since, judicial nominees have come to be wary of being “Borked,” a term that has entered the lexicon as a synonym for rejection in the face of adverse publicity and harsh cross-examination. Bork resigned from the Court of Appeals in 1988 and returned to academia, becoming a dyspeptic critic of liberalism, bemoaning the decline of Western culture, which he addressed with special bile in his book, Slouching Toward Gomorrah: Modern Liberalism and American Decline (1996). He died in relative obscurity in 2012.
* * *
Bork was defeated, but originalism lived on. Even before his nomination, the theory had established a beachhead on the court with the confirmation of Antonin Scalia in 1986. Although Scalia was in many ways as doctrinaire as Bork, the Senate unanimously confirmed him 98-0 on the same day it voted in favor of William Rehnquist’s elevation to the position of chief justice by a margin of 65-33. Having spent their capital in a losing bid to block Rehnquist, Senate Democrats were either too dispirited, disorganized or not yet fully aware of the dangers and potency of originalism to put up a fight against the first Italian-American justice. Compared to the treatment Rehnquist and Bork received, Scalia’s confirmation hearing was a lovefest.
Scalia was nine years younger than Bork and had served with him on the D.C. Court of Appeals. Scalia also had a background in academia. In 1982, as a law professor at the University of Chicago, Scalia helped organize one of the first chapters of the Federalist Society, and became the chapter’s faculty advisor. He remained active in the society as a coveted speaker and symposium guest until his passing in 2016.
In 1991, the Senate narrowly confirmed another self-declared originalist and Federalist Society member, Clarence Thomas, after a bitter confirmation hearing highlighted by Anita Hill’s explosive allegations of sexual harassment. Nominated by President George W. Bush, Thomas also came to the high court by way of the D.C. circuit, but had produced only a modest paper trail, obscuring his future political machinations. Two years later, however, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would make the lives of liberals “miserable.”
Scalia and Thomas brought a new brand of originalism to the court that arose in response to critics who charged that the actual intentions of the framers of the Constitution were too varied, conflicting and often ambiguous to serve as a basis for judicial decision-making. Instead of emphasizing original intent, they and other “new originalists” focused on the “original public meaning” of Constitutional provisions, which, they contended, could be ascertained from the recorded debates of the founding era and from such sources as late 18th-century dictionaries. The key, as law professors Michael Rappaport of the University of San Diego and John McGinnis of Northwestern University, explained in an influential 2007 law review article would be to determine “how a reasonable person at the time of the Constitution’s adoption would have understood its words and how they thought they should be interpreted.”
All originalists — whether of the old or new stripe — contend that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.
In fact, originalism does nothing of the sort. Fordham University history professor Saul Cornell summed up the fatal flaws of the theory in a scathing 2011 Dissent article, New Originalism: A Constitutional Scam. The first academic iteration of Originalism, Cornell wrote, rested on “shaky historical foundations” because the Founders “did not speak with a single voice on most constitutional questions.” New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”
Result-oriented judging, of course, has existed from the earliest days of the republic. Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th, and 15th amendments, is another originalist landmark.
Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens.
As the court entered the second decade of the 21st century, however, it remained divided between conservatives, liberals and centrists, often dividing 5-4 in major rulings. The ascension of Donald Trump as the 45th president in 2016 and the death of Justice Ruth Bader Ginsberg in 2020 radically altered the balance.
During the 2016 presidential campaign, Trump promised that, if elected, his judicial nominees would “all [be] picked by the Federalist Society.” Before the election, Trump released two lists of Supreme Court candidates, both compiled by the Federalist Society and the far-right Heritage Foundation.
After the election, Trump proved for once true to his word, meeting with Leonard Leo, then the Federalist Society’s executive vice president, to map out plans for selecting Scalia’s successor. Soon thereafter, Leo took a leave of absence from the society to formally advise Trump on the confirmation process for both Neil Gorsuch, who succeeded Scalia, and Brett Kavanaugh, who replaced the retiring centrist Anthony Kennedy. Leo had done the same in 2005-06, counseling President George W. Bush on the nominations of Roberts and Samuel Alito.
It’s easy to understand why Trump was attracted to the Federalist Society. From its fledgling beginnings as a debating club at a handful of elite law schools in the early 1980s, the society had mushroomed into a nationwide networkof 70,000 economic, social and Christian conservatives, along with right-wing libertarians, organized in lawyers’ chapters in 90 cities, and with student affiliates in nearly every major law school. No longer a shoestring operation, the society’s 2016 budget exceeded $26 million, raised in large part from contributions by right-wing philanthropists like the Koch brothers and other deep-pockets like the Mercer, Scaife, and Lynde and Harry Bradley foundations.
Trump also pledged during the 2016 campaign that his Supreme Court nominees would be “originalists” in the mold of Scalia. He fulfilled that pledge, too, with the selection of Gorsuch, Kavanaugh and, finally, Amy Coney Barrett. Barrett’s confirmation in 2020 brought the number of former or current Federalist Society members on the tribunal to six. (Though Roberts says he doesn’t recall belonging to the Federalist Society, the group listed him as a member in its 1997-98 directory.)
For the most part, Barrett followed the post-Bork strategy of other high-court nominees, refusing in her confirmation hearing to give direct answers to important questions such as whether the Constitution requires a peaceful transfer of power, or if a president can pardon himself for federal crimes.
New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”
But when asked by Sen. Diane Feinstein (D-CA) what it means to be an originalist, Barrett readily replied: “In English, that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.” In an exchange with Sen. Amy Klobuchar (D-MN), she also revealed that Roe v. Wade was not a precedent the court could never reconsider and overrule.
And so, the stage was set for the court to implement an even more regressive form of originalism. In June, it handed down its opinions in Dobbs v. Jackson Women’s Health Organization and New York Rifle & Pistol Association v. Bruen. In Dobbs, the court not only upheld a restrictive Mississippi abortion law, but finally made the far right’s fevered dream of overturning Roe v. Wade and Planned Parenthood v. Casey come true. In Bruen, the court struck down a century-old New York state regulation on concealed handgun permits as violative of the Second Amendment.
In both cases, the court abandoned the traditional methods of judicial scrutiny that require judges to determine the constitutionality of challenged laws by balancing the governmental interests advanced by the laws in question against the competing rights of individuals affected by the laws. In place of interest-balancing, the court substituted a test based exclusively on the Justices’ highly selective reading of history and their sense of tradition.
Writing for a 5-4 majority in Dobbs, Alito advanced the march toward right-wing judicial supremacy, declaring that both Roe and Casey were “egregiously wrong from the start” because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in the text. He also held that abortion cannot be considered an implied or “unenumerated” fundamental right under the 14th Amendment’s due process clause — as Roe and Casey both held — because it is not “deeply rooted in [our] history and tradition.” As a result, he concluded, the court was free to overrule Roe and Casey unconstrained by the doctrine of stare decisis, which holds that judges should adhere to precedent.
Instead of respecting precedent, Alito reached deep into the bowels of Anglo-American common law to override it. He cited, among other sources, the work of Henry de Bracton, a 13th-century English cleric and judge who condemned abortions as homicide, and a 17th-century English jurist who described abortion as a “great crime” and sentenced at least three women to death for witchcraft. By the time the 14th Amendment was ratified in 1868, Alito raged on, “three-quarters of the States [had] made abortion a crime at all stages of pregnancy,” in order to prove his point that abortion rights are not deeply rooted in our history.
The only solution, in Alito’s view, was to strip abortion of its Constitutional protections and return the issue to “the people’s elected representatives,” opening the door to state abortion bans and the possibility of a future federal statute outlawing abortion nationwide.
Alito’s reading of history was shoddy. Not only did he give no weight to the 50 years that Roe had been the law of the land, but he ignored the actual early history of abortion rights in America. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries…abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”
Repudiating Roe and Casey was also unnecessary. The court easily could have upheld the Mississippi statute, which outlawed almost all abortions after 15 weeks, without scrapping the federal right entirely, as Roberts urged in a separate opinion.
Clarence Thomas wrote the 6-3 opinion in Bruen, which was joined by all the court’s Republican appointees, including Roberts. Like Alito, Thomas applied a specious history and tradition test to strike down New York’s long-standing handgun permit system. In so doing, he dismissed the broad history of gun regulation in the U.S., dating back to the earliest days of the republic. As Fordham’s Professor Cornell, one of the foremost authorities on the actual history of the Second Amendment, observed in a critique of Bruen published by SCOTUSBlog:
“The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them.The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims.If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandonif the materials support the ideological agenda of the Federalist Society.”
Combined with the public leak of the draft of Alito’s Dobbs opinion in May and the fast-brewing scandal involving the role of Ginni Thomas in events related to the Jan. 6 insurrection, the court’s move to the right has triggered a crisis of legitimacy.In increasing numbers, Americans have lost trust in the court as an institution, and have come to see it correctly as a political body rather than an impartial arbiter of justice. The Dobbs decision is deeply unpopular, with 60% of respondents in recent rolls disapproving of the ruling. According to a June Gallup survey, Americans’ confidence in the court has plummeted to a new low. A mere 25% of respondents told Gallup they had “a great deal” or “quite a lot” of confidence in the Court.
And more bad decisions are on the horizon. In his concurring opinion in Dobbs, Thomas called upon his benchmates to revisit such privacy-based precedents as the right to contraception (Griswold v. Connecticut, 1965), the right to engage in same-sex intimacy (Lawrence v. Texas, 2003), and the right to same-sex marriage (Obergefell v. Hodges, 2015). Thomas and Gorsuch are also on record as favoring reconsideration of New York Times v. Sullivan (1964), another product of the Warren Court that shields the media from potentially crippling defamation lawsuits. Reaching even farther into the future, originalist academics such as the University of San Diego’s Rappaport have questioned the constitutionality of Social Security and Medicare.
There is a better and more reality-centered way to adjudicate constitutional issues. Originalism’s rival, known variously as “living or dynamic constitutionalism,” asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs and changing traditions.
A good example of the alternative can be found in Kennedy’s majority opinion in Obergefell. As the court’s swing justice, Kennedy sometimes adopted originalism, as he did in his 2010 opinion in Citizens United v. F.E.C. In Obergefell, he took a full-throated living constitutionalism approach, writing:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
It is no small irony that Kennedy was nominated to the court after Bork was defeated. But Kennedy retired in 2018, replaced by Kavanaugh, whose confirmation Senate Democrats were unable to halt.
There’s no denying the future of the Supreme Court looks grim. Still, as the successful fight against Bork long ago demonstrated, hope should never be abandoned. With enough public pressure and effective organizing, the court can be reformed and brought to serve the nation’s needs in the 21st century.
The prospects for reform will be subject of part II of this series.
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https://www.alternet.org/2022/12/this-is-nazism-kanye-west/
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https://www.alternet.org/2022/12/clarence-thomas-griswold/
As president, Donald Trump vowed to only nominate socially conservative Supreme Court justices who embraced an “originalist” philosophy of jurisprudence, pointing to Justice Clarence Thomas and the late Justice Antonin Scalia as the sort of justices he favored. Some right-wing Republican-appointed High Court justices, although fiscally conservative, turned out to be socially liberal when it came to issues like abortion and gay rights — for example, retired libertarian Justice Anthony Kennedy. Trump, however, wasn’t looking for the next Kennedy.
Trump was looking for the next Thomas or Scalia. And the three justices he appointed (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett) have been hailed by Fox News pundits as examples of “originalism” or “textualism” in action.
But one media figure who is highly critical of “originalist” or “textualist” ideology is Washington Post opinion columnist Ruth Marcus. In her December 1 column, Marcus slams “originalism” as painfully flawed and warns “liberal lawyers” against buying into it.
READ MORE: The Supreme Court is dirty. Time to clean it up
“Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap,” Marcus explains. “Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Not all of the conservative justices are committed originalists. I count four of the six — all but Chief Justice John G. Roberts, Jr. and perhaps Samuel A. Alito Jr., who describes himself as a ‘practical originalist.’ But they have all written or joined originalist rulings.”
Marcus continues, “Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the Court would be remiss not to make an originalist case. But there’s also little evidence, at least in the highest-profile cases, that it will do them much good.”
According to Marcus, “liberal lawyers” who try to use “originalist” arguments to make their case are not competing in a “fair fight” but rather, are up against “conservative justices” who will “cherry-pick competing originalist interpretations that comport with their underlying inclinations.”
“The more liberals present originalist arguments, the more they legitimate originalism rather than refuting it and offering a compelling alternative,” Marcus warns. “Courtroom advocates need to win the case at hand, yet that undermines the more critical long-term effort to wrench the Court away from its reliance on what is, at least as currently practiced, a flawed doctrine that peddles the illusion of impartiality in the service of a conservative result.”
Marcus continues, “Because originalism purports to freeze our understanding of the Constitution as written at the end of the 18th Century or amended in the second half of the 19th, it is skewed to a cramped reading of the document, unleavened by modern science and sensibilities. Why should we understand — much less accept — the constitutional meaning as fixed at a time when women lacked the right to vote, when recently enslaved Black people attended segregated schools, when the economy was agrarian, and when the notion of gay rights was unthinkable?”
Originalism, according to Marcus, was a “fringe legal theory” when it started to emerge in the early 1970s as a “reaction to the perceived excesses of the Warren Court.” And she urges “liberal” attorneys and judges to “push back” against originalism rather than pretending that a “flawed approach” has merit.
“Conviction, however sincere, does not make a flawed approach legitimate,” Marcus writes. “And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome. This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.”
READ MORE:Why Samuel Alito’s 'militant Christianity' is a 'problem for the rest of us': journalist
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https://www.alternet.org/2022/10/clarence-thomas/
no lnx
How Clarence Thomas’ conservative activism defies 'a fundamental principle' of US democracy: political scholar
Neil Roberts and The Conversation October 10, 2022
Neil Roberts, University of Toronto
With the opening of the U.S. Supreme Court’s new session on Oct. 3, 2022, Clarence Thomas is arguably the most powerful justice on the nation’s highest court.
In 1991, after Thomas became an associate justice and only the second African American to do so, his power was improbable to almost everyone except him and his wife, Virginia “Ginni” Thomas.
He received U.S. Senate confirmation despite lawyer Anita Hill’s explosive workplace sexual harassment allegations against him.
Today, Thomas rarely speaks during oral arguments, yet he communicates substantively through his prolific written opinions that reflect a complicated mix of self-help, racial pride and the original intent of America’s Founding Fathers.
He isn’t chief justice. John Roberts Jr. is.
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But with Thomas’ nearly 31 years of service, he’s the longest-serving sitting justice and on track to have the lengthiest court tenure ever.
June Jordan, pioneering poet and cultural commentator, observed in 1991 when President George H.W. Bush nominated Thomas that people “focused upon who the candidate was rather than what he has done and will do.”
As a scholar of political theory and Black politics, I contend we haven’t learned from this vital insight.
Conservative activism
Thomas’ service is under increasing scrutiny as his wife, a conservative activist, testified on Sept. 27, 2022, before the House committee investigating the Jan. 6 attack on the U.S. Capitol that she still believes false claims that the 2020 election was rigged against Donald Trump.
According to documents obtained by that committee, Ginni Thomas was instrumental in coordinating efforts to keep former President Donald Trump in office. Her efforts included sending emails to not only former White House Chief of Staff Mark Meadows but also state officials in Arizona and Wisconsin.
Of particular concern to the Jan. 6 committee is testimony from Thomas on her email correspondence with John Eastman, her husband’s former law clerk, who is considered to be the legal architect of Trump’s last-ditch bid to subvert the 2020 election.
In my view, Clarence and Ginni Thomas’ intertwined lives highlight a distressing underside to their personal union: the blurring of their professional and personal lives, which has had the appearance of fracturing the independence of the executive and judicial branches of government.
In this light, Thomas’ sole dissent in the case involving Trump’s turning over documents to the Jan. 6 committee is all the more alarming.
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‘What he has done and will do’
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Clarence Thomas has cultivated a distinct judicial philosophy and vision of the world – and a view of his place in it.
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From what can be gleaned from his own writings and speeches, his vision has been derived from Black nationalism, capitalism, conservatism, originalism and his own interpretations of the law.
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Since Thomas’ confirmation, his ideas and rulings have attracted many critics.
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But his interpetations of the law are now at the center of the high court’s jurisprudence.
In his concurring opinion of the court’s decision to overturn Roe v. Wade, Thomas argued that the court should reconsider reversing other related landmark rulings, including access to contraception in Griswold v. Connecticut, LGBTQ+ sexual behavior and sodomy laws in Lawrence v. Texas and same-sex marriage in Obergefell v. Hodges.
In short, Thomas’ sentiments reveal a broader ultraconservative agenda to roll back the social and political gains that marginalized communities have won since the 1960s.
The rulings in those cases, Thomas wrote, relied on the due process clause of the 14th Amendment and “were demonstrably erroneous decisions.”
“In future cases,” Thomas explained, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell … we have a duty to ‘correct the error’ established in those precedents.”
Other recent Supreme Court rulings, on Second Amendment rights, Miranda rights, campaign finance regulations and tribal sovereignty, are also evidence of Thomas’ impact on the nation’s highest court.
The long game
In his memoir and public speeches, Thomas identifies as a self-made man.
Though he has benefited from affirmative action programs – and the color of his skin played a role in his Supreme Court nomination – Thomas has staunchly opposed such efforts to remedy past racial discrimination. Like other notable Black conservatives, Thomas argues that group-based preferences reward those who seek government largesse rather than individual initiative.
With the exception of guidance of Catholic Church institutions and his grandfather Myers Anderson, Thomas claims he earned his accomplishments by effort, hard work and his own initiative.
In a 1998 speech, Thomas foreshadowed his judicial independence and made clear that his attendance before the National Bar Association, the nation’s largest Black legal association, was not to defend his conservative views – or further anger his critics.
“But rather,” he explained, “to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black.”
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“I come to state that I’m a man, free to think for myself and do as I please,” Thomas went on. “I’ve come to assert that I am a judge and I will not be consigned the unquestioned opinions of others. But even more than that, I have come to say that, isn’t it time to move on?”
But like many of Thomas’ complexities, his own self-made narrative distorts the ideas of the first prominent Black Republican who remains one of his intellectual heroes – Frederick Douglass, the statesman, abolitionist and fugitive ex-slave whose portrait has hung on the wall of Thomas’ office.
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But in “Self-Made Men,” a speech he first delivered in 1859. Douglass disagreed with the idea that accomplishments result from solely individual upliftment.
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“Properly speaking,” Douglass wrote, “there are in the world no such men as self-made men. That term implies an individual independence of the past and present which can never exist.”
Law against the people
Thomas’ view of the law is rooted in the originalism doctrine of an immutable rather than living U.S. Constitution.
Since the 1776 Declaration of Independence, modern America for Thomas has been predominantly a republic, where laws are made for the people through their elected representatives. Unlike a pure democracy, where the people vote directly and the majority rules, the rights of the minority are protected in a republic.
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Dating back to ancient Rome, the history of republicanism is a story of denouncing domination, rejecting slavery and championing freedom.
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Yet in my view, American republicanism has an underside: its long-standing basis in inequality that never intended its core ideals to apply beyond a small few.
Thomas claims consistency with America’s original founding.
In my view, Thomas’ perilous conservative activism works against a fundamental principle of the U.S. Constitution – “to form a more perfect union.”
Thomas’ rulings reveal a broader ultraconservative agenda to roll back the social and political gains that marginalized communities have won since the 1960s.The Conversation
Neil Roberts, Professor of Political Science, University of Toronto
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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an ah 7 22
During the Bill Clinton years, the term “originalism” was primarily used in connection with two far-right U.S. Supreme Court justices: Clarence Thomas and the late Antonin Scalia. Others on the High Court, from the late liberal Clinton appointee Justice Ruth Bader Ginsburg to Justice Sandra Day O’Connor to Justice Anthony Kennedy — a right-wing libertarian and Ronald Reagan appointee who was fiscally conservative yet protective of gay rights and abortion rights — rejected originalism, which is often synonymous with far-right social conservatism.
The Clinton years are long gone. O’Connor (now 92) and Kennedy retired, Ginsburg died in 2020, and the originalist thinking now dominates the High Court — where Republican-appointed justices have a 6-3 supermajority. One-third of the Court now consists of justices appointed by former President Donald Trump: Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all of whom joined Thomas and Justice Samuel Alito in overturning Roe v. Wade.
Author/legal expert David H. Gans, who serves as director of the Human Rights, Civil Rights, & Citizenship program at the Constitutional Accountability Center, examines the originalist doctrine as practicedby 2022’s Supreme Court in a biting think piece published by The Atlantic on July 20 — and lays out some reasons why it has been a total disaster.
“When Justice Amy Coney Barrett joined the Supreme Court in 2020,” Gans explains, “conservatives celebrated that ‘there are now four avowed originalists on the Court.’ To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were —even as they got all the results they wanted. Although conservative originalists have, for years, been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered: a hollow edifice designed to hide an ugly and aggressive ideological agenda.”
The problem with originalism as practiced by Thomas, Barrett, Alito and other Republican-appointed justices, Gans argues, is that they “cherry-pick” the parts of U.S. history that they like and gloss over the parts that they don’t.
“This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter,” Gans observes. “This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.”
Gans tears apart the High Court’s ruling Dobbs v. Jackson Women’s Health Organization and its decision to overturn Roe v. Wadeafter 49 years. Alito argued that Roe was inconsistent with U.S. “history and tradition,” and Gans explains why his use of that concept is badly flawed.
READ MORE:The Supreme Court’s nod to white Christian theocracy
According to Gans, “Alito’s account of ‘history and tradition’ ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights…. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family…. In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.”
Gans writes that while Dobbs “deployed selective history to take away a fundamental right,” the 2022 Court’s 6-3 ruling in New York State Rifle & Pistol Association v. Bruen “deployed selective history to create one: a radically expansive right to be armed in public.” And Gans notes that “in this term’s religion cases, Carson v. Makin and Kennedy v. Bremerton School District, the 6-3 conservative majority dramatically expanded the protections of the free-exercise clause, without a whiff of attention to history and tradition, while whittling down the Establishment Clause in light of historical practice.”
When it comes to “history and tradition,” Gans stresses, the U.S. Supreme Court’s “originalists” are willing to ignore parts of U.S. history that don’t fit their narrative.
“As these examples illustrate, ‘history and tradition’ is the new calling card of a Supreme Court that is willing to upend our constitutional order in the name of traditionalism,” the author/legal expert laments. “Do not label the Roberts Court ‘originalist,’ if that term is to have the methodological meaning its supporters have been advertising for years. It is not. It is a deeply unprincipled conservative Court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres.”
READ MORE:The Supreme Court is laying the groundwork to pre-rig the 2024 election
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yikes
[[https://slate.com/news-and-politics/2022/05/ginni-and-clarence-thomas-steal-2024-election-coup.html
dahlia &
no lnx many
Clarence and Ginni Thomas Are Telling Us Exactly How the 2024 Coup Will Go Down
BY DAHLIA LITHWICK AND MARK JOSEPH STERN
MAY 23, 2022
Justice Clarence Thomas sits side-by-side with his wife and conservative activist Virginia Thomas.
On Friday, the Washington Post broke the news that Ginni Thomas sent emails to Arizona elections officials asking them to set aside the will of the voters and submit a slate of fake electors who would support Donald Trump, even after he demonstrably lost the 2020 presidential election. The news barely caused a ripple because there is seemingly nothing to be done about Justice Clarence Thomas’ refusal to recuse in cases that materially affect his spouse, even as he has already decided several matters surrounding the 2020 election … and also because that same spouse had written far more inflammatory, QAnon-style texts to Trump’s chief of staff urging him to set aside the 2020 contest, and nothing was done about that either.
In reality, of course, there is plenty to be done about Supreme Court justices who decline to be bound by federal recusal statutes and judicial ethics canons. But unless and until there is a ravenous public appetite for reforms to the court, we will continue to watch this play out in mute horror, as though it’s a Netflix special about the Tudors, and the only recourse we have is to return to our mutton farming. Reforms aside, there is another more crucial lesson from the Thomases’ tag-team efforts to seat a president who lost an election: What’s past is prologue, and what was done sloppily in 2020 is being mapped out by experts for 2024.
It’s easy to dismiss the demented texts and emails from a sitting justice’s spouse to public officials who have long-standing professional connections to that justice as zany conspiracy theorizing. Ginni Thomas can be lumped into the QAnon weirdos bucket with Cleta Mitchell, Sidney Powell, Rudy Giuliani, and Mike Lindell—hapless insurrection enthusiasts who were unable to marshal a single winning argument in an actual court of law after the 2020 election. But the other way to look at the texts and emails that were pinging around the highest echelons of power and influence in the weeks after November 2020 is as a warning and road map for what is already being put into place for the next presidential contest.But next time, the lawyers won’t be sweating brown makeup or referencing crackpot theories of Italian election meddling.
What Thomas was emailing was a prefabbed piece of legal advocacy that urged Arizona state officials to “Please stand strong in the face of political and media pressure. Please reflect on the awesome authority granted to you by our constitution. And then please take action to ensure that aclean slateof electors is chosen for our state.” That isn’t just words. It’s actually a theory underlying the subversion of an entire presidential election. It’s also a theory her husband has endorsed as a matter of constitutional law. It didn’t work in 2020 because the legal and political structures to support it weren’t in place at the time. Those pieces are being put into place as we type this.
Recall, for instance, that back in November of 2020, it wasn’t clear there were five votes at the Supreme Court to support the proposition that state legislatures could simply set aside election results they deemed tainted by impropriety. Recall that when lawyer/insurrectionists John Eastman (a Thomas clerk) and Jeffrey Bossert Clark floated that notion at the White House and elsewhere, serious DOJ attorneys told them in no uncertain terms to go away. Recall finally that one of the lawmakers in Arizona, Shawnna Bolick, is married to a state Supreme Court justice and is parent to Clarence Thomas’ godchild. Bolick, as Jane Mayer of the New Yorker reported in 2021,later introduced legislation that “would enable a majority of the legislature to override the popular vote … and dictate the state’s electoral college votes itself.” In other words, what Bolick couldn’t lawfully do in 2020 is a thing she hopes to do under color of law in future. Oh, and Bolick is now running for secretary of state, the office that oversees state elections.
The New York Times reported this weekend on the proliferation of Bolick’s fellow travelers: election-deniers seeking or holding office in states that will decide the winner of the 2024 presidential race. According to their tally, at least 357 sitting Republican legislators in swing states “have used the power of their office to discredit or try to overturn the results of the 2020 presidential election.”That number amounts to “44 percent of the Republican legislators in the nine states where the presidential race was most narrowly decided.” Moreover, election deniers around the country are running for secretary of state and attorney general—vying to be swing states’ top election officer and top cop, respectively. If successful, they can use this power to aggressively investigate bogus claims of voter fraud, attempt to nullify Democratic ballots, refuse to certify the true results, and even try to approve an “alternative” slate of electors for the loser. This is what Ginni Thomas was pushing two years ago, and what her husband has already deemed constitutionally permissible.
Will any of this work? The Thomases clearly think it will. At the same time Ginni was lobbying state legislators to overturn the results, Clarence was developing and promoting a constitutional theory that would lend legitimacy to just such a brazen coup. The justice has become an avid fan of the “independent state legislature doctrine,” a verifiably false, pseudo-originalist theorythat allows state legislatures to ignore the real results and rig elections for Republicans. Thomas repeatedly deployed this theory during the 2020 race in an effort to void mail ballots in battleground states(which disproportionately favored Democrats). He later peddled a somewhat sanitized version of the Big Lie, falsely asserting that mail ballots—specifically, those used to elect Joe Biden in 2020—are highly susceptible to voter fraud.Ever since, he has continued to champion the theory whenever lower courts’ election law rulings happen to help Democrats. As our colleague Richard Hasen has pointed out, it looks increasingly likely that the Supreme Court will decide this issue by 2024.
The symmetry between Ginni and Clarence Thomas’ work has never been more obvious. While Clarence fought to give state legislatures the constitutional authority to reject election results, Ginni lobbied state legislators to do exactly that. A casual observer might assume they were working in tandem, with Clarence handling the law and Ginni working on the political side. They aren’t particularly subtle about it. You need only read Ginni’s emails and Clarence’s opinions to see exactly how the 2024 coup attempt will go down because it’s identical to the 2020 coup attempt: If a Democrat prevails, red state officials will question the legitimacy of the results, giving state legislatures an opportunity to throw them out and declare the Republican to be the real winner. This has nothing to do with liberals squelching Ginni Thomas’ feminist drive to have a separate and distinct political life apart from that of her spouse. More power to her. This has everything to do with two public actors working together to ensure that red state legislatures decide future elections in lieu of the voters.
The question remaining isn’t whether it’ll happen; the question is whether it’ll succeed. The Thomases tried this approach in 2020, but like Trump’s other allies, they developed their strategy a bit too late and didn’t buff out the crackpot edges until recently. But this time they’re putting in the work with plenty of time to spare. If Republicans succeed in pulling off a much more respectable coup in 2024, Americans will have every right to be furious and appalled. But no one will have any excuse to be surprised, because Clarence, Ginni, Eastman, Clark, and their many powerful friends are currently laying out the game plan right before our eyes.
For more on Ginni Thomas’ role in efforts to overturn the 2020 election, listen to this episode of What Next.
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lnx
...recall, for instance, that back in November of 2020, itwasn’t clear there were five votes at the Supreme Court to support the proposition that state legislatures could simply set aside election results they deemed tainted by impropriety. Recall that when lawyer/insurrectionists John Eastman (a Thomas clerk) andJeffrey Bossert Clark floated that notion at the White House and elsewhere,serious DOJ attorneys told them in no uncertain terms to go away. Recall finally that one of the lawmakers in Arizona, Shawnna Bolick, is married to a state Supreme Court justice and is parent to Clarence Thomas’ godchild. Bolick, as Jane Mayer of the New Yorker reported in 2021, later introduced legislation that “would enable a majority of the legislature to override the popular vote … and dictate the state’s electoral college votes itself.” In other words, what Bolick couldn’t lawfully do in 2020 is a thing she hopes to do under color of law in future. Oh, and Bolick is now running for secretary of state, the office that oversees state elections.
the New York Times reported this weekend on the proliferation of Bolick’s fellow travelers: election-deniers seeking or holding office in states that will decide the winner of the 2024 presidential race. According to their tally, at least 357 sitting Republican legislators in swing states “have used the power of their office to discredit or try to overturn the results of the 2020 presidential election.” That number amounts to “44 percent of the Republican legislators in the nine states where the presidential race was most narrowly decided.” Moreover, election deniers around the country arerunning forsecretary of state andattorney general—vying to be swing states’ top election officer and top cop, respectively. If successful, they can use this power to aggressively investigate bogus claims of voter fraud, attempt to nullify Democratic ballots, refuse to certify the true results, and even try to approve an “alternative” slate of electors for the loser. This is what Ginni Thomas was pushing two years ago, and what her husband has already deemed constitutionally permissible.
Will any of this work? The Thomases clearly think it will. At the same time Ginni was lobbying state legislators to overturn the results, Clarence was developing and promoting a constitutional theory that would lend legitimacy to just such a brazen coup. The justice has become an avid fan of the “independent state legislature doctrine,”averifiably false, pseudo-originalist theory that allows state legislatures to ignore the real results and rig elections for Republicans. Thomasrepeatedlydeployed this theory during the 2020 race in an effort to void mail ballots in battleground states (which disproportionately favored Democrats). He later peddled a somewhat sanitized version of the Big Lie, falsely asserting that mail ballots—specifically, those used to elect Joe Biden in 2020—are highly susceptible to voter fraud. Ever since, he hascontinued to champion the theory whenever lower courts’ election law rulings happen to help Democrats. As our colleague Richard Hasenhas pointed out, it looks increasingly likely that the Supreme Court will decide this issue by 2024...
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no lnx
stern
the Supreme Court will not overturn a century of pro-democracy precedent and two centuries of historical practice to give state legislatures unlimited power over elections—yet.
That’s the upshot of the court’s orders on Monday in two huge redistricting cases out of Pennsylvania and North Carolina. The court refused to block new congressional maps drawn by the high court of each state, declining—for now—to embrace a radical theory rejecting state courts’ authority over election law. In the process, however, four justices did endorse this theory, and three attempted to blow up North Carolina’s upcoming election in a dissent with terrifying implications for democracy. The court stepped back from the abyss, but the ensuing reprieve may not last for long.
Both of Monday’s orders involve this year’s redrawing of congressional maps. In Pennsylvania, the Republican-controlled legislature drew a GOP gerrymander, which the Democratic governor vetoed. Because of this impasse, the Pennsylvania Supreme Court stepped in to draw new, fairer districts. In North Carolina, the Republican-controlled legislature drew a GOP gerrymander, which the Democratic governor could not veto under state law. Voters challenged the map under the state constitution, and in February, the state Supreme Court struck it down. The legislature drew a new map, which a trial court rejected and replaced with its own, fairer version.
Republicans appealed both court-drawn maps to SCOTUS. They claimed that these plans violated the U.S. Constitution’s elections clause, which says that the “manner” of federal elections “shall be prescribed” by the “legislature.” For at least a century, SCOTUS has read this language to give other organs of state government a say in election law. But conservative scholars have devised a theory known as the “independent state legislature doctrine” that would give legislatures complete control over elections, including voting rules and redistricting. Under this theory, state constitutional provisions governing elections would be null and void, and state courts would have no power to intervene in election disputes. The legislature alone would set the rules—and, in extreme versions of the theory, even dictate the outcome of an election.
The Supreme Court has never endorsed this doctrine, and has explicitly rejected it as recently as 2015. There is a good reason why: It contradicts the original meaning of the elections clause as well as historical practice reaching back to the early days of the republic. A mountain of evidence proves that Framers never intended to give states lone authority over federal elections, and instead expected state constitutions to impose substantive limits on election law.Exhaustive research demonstrates that—aside from a few opportunistic arguments raised by congressional partisans in the 19th century—state legislatures, state courts, federal courts, and Congress have all rejected the doctrine for more than two centuries.
And yet, for nearly two decades, the conservative legal movement, working alongside Republican politicians, has pushed relentlessly to enshrine this theory into law. It nearly succeeded during the 2020 election, when Justices Clarence Thomas, Sam Alito, Neil Gorsuch, and Brett Kavanaugh deployed the theory in an effort to void thousands of disproportionately Democratic ballots. They failed, but their stance encouraged Republicans to try again this year—hence Monday’s cases.
Perhaps the most galling aspect of Alito’s dissent is its hypocrisy.
The Pennsylvania challenge was always a tougher sell: The plaintiffs demanded at-large congressional districts for the first time since the 18th century because there was no backup map in place and no time for the legislature to draw one. Moreover, the case invoked the most extreme possible version of the independent state legislature doctrine, which excludes even the governor from redistricting. It was no surprise, then, that the court disposed of that challenge with no noted dissent.
By contrast, the North Carolina case teed up the elections clause issue perfectly, and thus divided the court. Because it’s a shadow docket order, we don’t know exactly how each justice voted, but it appears that Chief Justice John Roberts and Justice Amy Coney Barrett joined the liberals in turning away the challenge without comment. Kavanaugh wrote that Republicans had “advanced serious arguments on the merits” but concluded that it was too late for the federal judiciary to intervene, citing the Purcell principle. Alito, joined by Thomas and Gorsuch, dissented, declaring that the North Carolina Supreme Court had likely violated the elections clause by striking down the legislature’s congressional map.
Alito’s dissent, which wholeheartedly adopted the independent state legislature doctrine, is a master class in disingenuousness. He omitted more than a century of SCOTUS precedent rejecting the doctrine. He ignored the Purcell principle, which he has consistently used to halt lower court orders protecting voting rights. He disregarded the North Carolina legislature’s express approval of judicial supervision over redistricting. And he dismissed the North Carolina Supreme Court’s decision as mere “legislation”—even though the majority engaged in an exhaustive overview of the state constitution’s guarantee that “all elections shall be free.”
“This guarantee of ‘free elections’ dates all the way back to the North Carolina Constitution of 1776,” Alito wrote, “but for 246 years that language was not found to prohibit partisan gerrymandering.” Implying that the court’s Democratic majority was motivated by politics rather than law, he fumed: “Only this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering.” (The long dormancy of a constitutional provision did not stop him from adopting a novel reading of the Second Amendment in 2008.)
Alito also complained that the North Carolina Supreme Court cited state constitutional guarantees of free speech, assembly, and association, which “make no reference to elections.” Unmentioned is the glaring fact that the First Amendment does not mention elections either, yet Alito has repeatedly used it to strike down election regulations. (It seems supporting Republican candidates counts as free speech, while supporting Democratic candidates does not.)
Perhaps the most galling aspect of Alito’s dissent, though, is its hypocrisy. When the court prohibited federal courts from evaluating partisan redistricting in 2019, it assured the nation that state supreme courts could still strike down such gerrymanders. “Our conclusion [does not] condemn complaints about districting to echo into a void,” the court insisted. Alito, Thomas, and Gorsuch joined this opinion. Now they’ve revealed it was a bait-and-switch.
It is mildly encouraging that Kavanaugh did not join this flamethrowing dissent and applied his own rule against intervening on the eve of an election. But he also made it clear that he will vote to take up the North Carolina case next term. That makes four votes to consider the independent state legislature doctrine—all that’s required to put the case on the calendar. It now appears inevitable that, in 2023, the Supreme Court will decide whether state legislatures have unrestricted power to rig federal races for Congress and the presidency. Roberts has already disclaimed the theory, meaning the fate of democracy really is in Barrett’s hands. Her vote on Monday suggests she is hesitant to go along with this scheme. But then again, she might just be picking her battles, since her vote would not have changed the outcome.If Barrett ultimately sides with the four far-right conservatives, the 2024 elections may be decided before they begin.]]
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omg
https://www.nationofchange.org**/2022/07**/07/opus-dei-supreme-indecency-extreme-deceit/
the current Supreme Court majority that just denied women a legal right to abortion (Dobbs vs. Jackson) consists of religious fanatics whose careers have been fast-tracked (so that young Justices can serve for decades) by ultra-wealthy, like-minded lobbyists and political operatives. The nexus of this activity lies with a powerful arch-conservative organization within the Catholic Church, Opus Dei, that in the U.S. operates out of the Catholic Information Center in Washington D.C.
I am not targeting Catholics but rather the Church’s reactionary, fundamentalist wing. Many Catholic organizations are dedicated to upholding the rights and lives of minorities (and majorities, such as women), victims of pedophilic priests, gays, the poor, immigrants, etc. The fundamentalist wing of any religion has more in common with other creeds’ fundamentalisms than with many of its own co-religionists, whom they often regard as enemies. Catholic fundamentalism is obviously not the only “brand” influencing American politics, but it is the one with a dominant insidious influence on the judiciary.
Opus Dei and its partner organizations have poured tens of millions of dollars into promoting the careers and appointments of Chief Justice Roberts and the five Justices who overturned Roe: Thomas, Alito, Kavanaugh, Gorsuch, and Barrett (Roberts, an arch-conservative, nonetheless dissented on the abortion case).
Opus Dei was founded in Spain by Escriva de Balaguer in 1928 and grew in power, wealth, and influence during the Fascist dictatorship of Francisco Franco who, with significant military help from Nazi Germany, overthrew the legitimate Spanish government and ruled over a police state from 1939-1975.The group extended its power throughout Latin America, supporting Pinochet’s murderous regime in Chile and other terrorizing dictatorships. It consistently opposes gay, sexual, and reproductive rights, and the Catholic liberation movements that champion the poor in Latin America. It has been involved in the Vatican’s banking scandals but still wields enormous influence over Vatican finances, as detailed by Robert Hutchison in his book, Their Kingdom Come.
Opus Dei’s assets as of 2008 were $2.8 billion, but they have undoubtedly grown since. Popes John Paul II and Francisboth elevated Opus Dei officials to the highest Church offices. One of Opus Dei’s core principles, as articulated by its founder, is to engage in “the sphere of public life”, not because they are human or Catholic rights but because “they are God’s rights…May such ‘fanaticism’ for the Faith…become stronger every day.” Opus Dei is not simply a conservative religious group, it is openly dedicated to wielding political and financial power in nations throughout the world. And that often means promoting and aligning itself with the most violent, reactionary regimes and acting in the shadow realms of political influence.
Opus Dei members were prominent in Trump’s White House, including Attorney General William Barr and Pat Cipollone, Trump’s former White House counsel. Opus Dei had access to Trump’s budgetdirector,Mick Mulvaney, along with other noted right-wing lobbyists (Heritage Foundation, Koch Industries), meetings the Trump administrationtried to keep secret. Member Larry Kudlow was Trump’s director of the National Economic Council. It may well be the most powerful political lobby in the world and yet its explicit political agenda is absolutely subservient to its extreme, authoritarian religious agenda.
A key fixer in this effort is Leonard Leo. Leo is on the board of directors of the Catholic Information Center (William Barr was a past director) and Executive Vice Presidentof the Federalist Society, a lobbying group that adheres to an “originalist” interpretation of the Constitution (more on this below). The two organizations are close political allies, as Leo’s dual role suggests. As Trump’s close advisor during his presidency, Leo was responsible for selecting and guiding the Supreme Court nominations of Alito, Barrett, Kavanaugh, and Gorsuch and was instrumental in riddling the lower Federal courts with Trump appointees.
Meanwhile, members of both Opus Dei and The Federalist Society include Alito, Clarence Thomas, and the late Justice Antonin Scalia. Chief Justice Roberts is a Federalist Society member and the Society’s members and supporters are prominent in many of nation’s top law schools and most powerful law firms, which allows it to have an untoward influence over judicial selections. When Clarence Thomas headlined a 2013 Federalist Society fundraiser, guests were seated in proximity to him according to the size of their donations. In effect, the Federalist Society and Opus Dei have become the Supreme Court of the land.
Much of Opus Dei’s influence was exerted via the Wellspring Committee, established and run by Opus Dei members Ann and Neil Corkery in 2008. The Koch brothers were instrumental in providing Wellspring with its first $10 million in seed money. According to Robert Maguire of Citizens for Responsibility and Ethics in Washington, the Corkerys “have been the overseers of massive amounts of money that have gone into federal judicial races.”
Wellspring closed down in 2018 but not before passing its mantle to the Judicial Crisis Network (JCN); in 2017 Wellspring transferred $14,814, 998.00, or 94% of its donations that year, to JCN. JCN was formerly directed by Leonard Leo and now byCarrie Severino, who served as Thomas’s law clerk. (Opus Dei’s Roger Severino, Carrie’s husband, was Director of Trump’s Office for Civil Rights). JCN is a 501(c)(4) organization so its donors can remain secret. JCN poured millions into supporting Bush and Trump’s Supreme Court nominees (Roberts, Alito, Kavanaugh, Gorsuch, and Barrett) and millions blockingObama’s Court nominee, Merrick Garland.
Given Opus Dei’s absolute anti-choice ideology, global power, and influence over the Supreme Court, it is clear the Court’s anti-choice decision was not driven by legal arguments over the right to privacy, strict or “originalist” interpretations of the Constitution, or states rights. These were all just window dressing. The Supreme Court—and much of our judiciary—has been taken over by fanatics with a strictly theologicalagenda: to replace “separation of Church and State” with “the Church runs the state”. It is a narrow, fanatical religious ideology that decided the case.
The so-called “originalist” theory of interpreting the Constitution claims the Constitution only protects rights explicitly mentioned in the text. The Constitution itself rejects the “originalist” idea so central to conservative ideology. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This clearly states that interpreting the Constitution is a living, evolving process, for how else can those “other[s]” rights be “retained by the people”? The Ninth is also a safety valve: “If we left out any important rights, sorry, our bad, it doesn’t mean those rights aren’t protected as well.” The Ninth has been used to uphold such diverse rights as teaching non-English languages, sending kids to private schools, protecting against forced sterilization, and the 1965 Griswold decision overturning bans on contraception, in which privacy was deemed a “penumbra” (also called “unenumerated”) right. The penumbra concept was then applied to abortion in 1973’s Roe decision.
Justice Harry Blackmun wrote the majority decision in Roe v. Wade, citing both the Ninth and Fourteenth Amendments:“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.” The Court also recognized that “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary…is not in a position to speculate as to the answer.” Blackmun’s decision includes an overview of the dramatic shifts in cultural and legal attitudes towards abortion, though most views differentiated abortions in the first 12-16 weeks (before the baby is usually felt moving inside the womb) from those occurring later.
The “sanctity of the foetus”, that is, viewing abortion at any stage of pregnancy as equivalent to murder, is the linchpin of the anti-choice position and its driving emotional trigger. However, even the Catholic Church’s historical opposition to abortion had nothing to do with the sanctity of the foetus; it was aimed at the “sin” of sexual pleasure. Church policy varied over the centuries but the foetus’s life was either absent as an issue or secondary to sexual sin and other theological concerns. St. Thomas Aquinas asserted that in its earlier stages a foetus is in a “vegetal” and then “animal” state before achieving person-hood at some point, most likely at the end of the third month.It wasn’t until 1965 that the Church banned abortion on the basis of sanctity of life rather than sexual sin.However, the Bible passages used to justify this claim 1) do not really address abortion (the BIble is much more direct in advising that adulterers be stoned to death); 2) are drawn mostly from the Old Testament, a Jewish document, significant since the Jewish religion allows abortion; and 3) are in the Bible, which has no legal standing in the United States. Or didn’t.
The Court’s decision in Dobbs v. Jacksonis only the beginning, as anti-abortion activists and GOP-led extremists mobilize to assault a wide range of rights. The anti-choice movement was never only about abortion. Abortion was used as the emotional catalyst for a broad attack on the values of tolerance and social commitment embodied in Federal guarantees backed by Constitutional authority. The well-being of Americans and our system of government is now in the hands of religious fanatics on a crusade against all those who do not believe in their degraded, medieval version of truth. They are welcome to their beliefs but are not welcome to impose those beliefs on the rest of us, nor to challenge the fundamental values of the United States, which holds the value of human beings above adherence to extreme and rigid political or religious ideologies.
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https://www.alternet.org/2022/06/originalism-scotus-rationalize-mass-murder/
swearingen kim
When I moved to New York City in 1981, I first stayed at the YMCA, and every day I encountered street hustlers on 34th Street, taking people's money with the shell game. You know how it goes: A pea or a little ball is placed under one of three cups and moved around rapidly; you are enticed to bet on where it ends up. (And after the first "lucky" guess, you are invariably wrong.)
I've been thinking about those shell games because of the endless, reverent talk of "textualism" and "originalism" by conservative, Federalist Society–approved justices on the Supreme Court.
It was Justice Antonin Scalia who first articulated a handy way to expand "gun rights" beyond any reasonable limits, and to render our Constitution as dead as any of the innumerable victims of American gun violence — in the process, going against the explicit wishes of some of the most prominent members of the founding generation, ounders, including Thomas Jefferson and James Madison. In the 2008Heller decision, which somehow blithely dispensed with the whole "well regulated Militia" thing, and in various of his writings, Scalia outlined the right-wing constitutional interpretation now known as "textualism" or "originalism."
"Strict construction "— meaning an absolutely literal reading of the Constitution or of a statute — was supported by conservatives until it received too much criticism. That clenched-sphincter dodge was then replaced by "textualism" and later "originalism," both of which, more or less, allow a judge just a bit more interpretive leeway. Then there are the different kinds of originalism — one that seeks to divine the writer's original intent, and another that looks at original meaning, as supposedly understood by reasonable people at the time of the writing. Failing that, originalists, including Justice Amy Coney Barrett, who formerly clerked for Scalia, will detour into a "common-law Constitution" (or "living Constitution") and wander through English common law, historical documents and even favored philosophers until they find what they're looking for.
I don my tricorn hat and declare this "poppycock."
Historian Heather Cox Richardson has detailed, referring specifically to Barrett, how conservative justices have used this interpretive technique to limit the powers of the federal government and reverse the gains made since World War II in regulating business activities or and in expanding civil and women's rights:
The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure.
And what about all of our nation's current problems, ones the founders could not possibly have anticipated? The simple algorithm for textualists and originalists appears to be: 1) If the founders didn't write explicitly about it, then we don't need to know about it, because the Founders were godlike and are still totally pertinent; 2) If the founders did write about it but were vague in their expression, we'll consult English common law or our fave-rave philosophers (e.g., Plato, Edmund Burke) for answers, because, well, everyone knows the founders were in a big hurry and often imbibed too much cider.
In other words, it's a rigged game in which you cherry-pick whatever quotes seem to support the decisions you are determined to make anyway. We all try to fight confirmation bias when we go searching for evidence in other people's writings. Even a journalist writing an opinion piece with a solid point of view needs, at least, to appear reasonable to the other side, to state facts clearly, to link to reputable sources and to outline or otherwise anticipate the likely objections.
But Republicans have declared war, at least since the era of Ronald Reagan, on government itself, so making laws to address public needs has become anathema to those who want only to "starve the beast" or, in Grover Norquist's troubling and violent metaphor, "drown it in the bathtub" and thereby send power back to individual states. So here we are, with only one functioning political party, while the other is enthralled with nonexistent voter fraud and other wacko conspiracy theories, harboring a growing devotion to authoritarian leaders, and doing anything possible — including flouting public health rules — to "own the libs." And now that unreasonable minority has supermajority control of the highest court in the land.
Republicans steadfastly refuse to make laws that address issues of grave public concern — such as regulating gun ownership, for example — because they are deeply invested in proving that our form of government cannot or does not work. That perverse effort has been in play for so long now that Republicans reflexively try to cast themselves as the victims and make tragedies like mass shootings further alienate Americans from one another, insisting that nothing can be done because sowing that sense of helplessness and isolation far and wide yields short-term political benefits for them.
Remember the Obama signs that said "HOPE," which Republicans countered with "NOPE"? They meant it. They told us then that they were the party that stood for hopelessness.
As least as they're utilized now by emboldened right-wing judges, both textualism and originalism are merely august-sounding forms of judicial obstructionism or revanchism.
Despite the Heller ruling, any good-faith textualist reading of the Second Amendment would instantly reveal that the so-called right to bear arms depends on the continuing need for a well-regulated militia, an observation made by previous Supreme Court justices and other legal minds much more qualified than I am. But even a dope like me can read the plain meaning of the text: The second part of that 27-word statement is dependent on the first part. It's a conditional clause. If the first part is not true or no longer valid, the rest does not stand.
But, again, the so-called originalists will, from time to time, allow themselves to delve deeper and find their justifications wherever they can, in order to get that pea under the shell where they knew it would wind up from the beginning.
Even if you steadfastly don't want to believe that, then ask the question so many people have asked about the Buffalo shooter, the Uvalde shooter, the Tulsa shooter and the dozens or scores of others: Which well-regulated militia were they members of?
Scalia often wrote about the need for a "reasonable" interpretation of the Constitution, and that is exactly what has been abandoned, especially in his own on-the-fly remix of the Second Amendment.
The entire world sees it as it is, absurd and monstrous. If the United States is going to act as the "muscle" around the globe, we seriously need to get over our fake tough-guy fetish and our "exceptionalism" and learn from what works in other developed or even developing countries, where these kinds of mass shootings simply do not happen. The U.K. managed to quell gun violence after suffering tragedies, and now has a very low rate of homicide (0.04 per 100,000 people) relative to the U.S. (nearly 4 per 100,000). Australia and Ireland have done the same. Canada stands poised to ban assault-style weapons and limit ownership of handguns. Speaking of Heller and the "right" to own a handgun in the home, more than half the gun deaths in the U.S. result from suicide, because having a gun in the house makes suicide attempts far more likely to be lethal.
In this particular shell game, Americans lose more than pocket money — they lose many hard-won rights, environmental regulation and consumer protection, almost any action on the existential threat of climate change and their freedom to feel safe, for themselves and their loved ones, in public places.
In a 2018 New York Times op-ed, former Supreme Court Justice John Paul Stevens urged post-Parkland protesters to do more than fight for gun regulation. He wrote that they should "seek more effective and more lasting reform" and work for a repeal of the Second Amendment. In his view, the amendment was originally intended only as a stopgap measure:
Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that 'a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.' Today that concern is a relic of the 18th century.
My wife and I got to see our daughters finish elementary school and move on to middle school. My wife worked at their elementary school, and made lovely videos to commemorate those graduations to the next level. It breaks our hearts that the parents of all the children slain in the name of preposterous policies allowing for easy access to guns and assault weapons — or, for that matter, the parents who have lost a child to suicide made more efficient by a gun in the house — will never experience the joys and pains of seeing their kids grow up and become amazing adult versions of the beautiful children they once were.
But there are more guns to sell, more "patriotic" lobbyists trying to make a buck, more "pro-life" politicians to bribe, and a population that needs to be constantly reminded that government cannot work. (Especially when the Biden administration, in numerous ways, is proving that it can. Even Fox News admits to some positives.)
At the moment, the Supreme Court looks primed to strike down an eminently reasonable, century-old law in New York that regulates who can carry a handgun in public. So much for all the talk about being reasonable and including notions of fairness and good policy in decisions. Or even precedent — a once-cherished concept, now tossed to the wind.
They want you to listen up when you are told that, after the prayers, we will move on from this tragedy.
As gun fanatics continue to make increasingly absurd and often revealing arguments about who or what is to blame for the endless slaughter of their fellow Americans, of even schoolchildren, people of good faith in this country need to do everything we can to quell the gun violence. Public health campaigns are important, as are "red-flag" laws and regulations of semiautomatic weapons. But ultimately, Justice Stevens' solution will probably be necessary: The Second Amendment has to go.
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https://www.alternet.org/2022/05/scotus-blood-on-its-hands/
the court is about to take Second Amendment fundamentalism to a new and even more dangerous level.
If you're looking for someone or something to blame for the mass shootings that have left our schools, streets and communities soaked in blood, don't just point your finger at the deranged punks who pull the triggers, or the NRA and their lackeys in the Republican Party. Save at least some of your ire for the Supreme Court.
In 2008, the Supreme Court sold its soul to the gun lobby. In a 5-4 majority opinion written by the late Justice Antonin Scalia in District of Columbia v. Heller, the court held for the first time that the Second Amendment protects an individual right to own firearms.[cruz?]
Prior to Heller, the great weight of academic scholarship as well as the court’s 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.
In 2010, the court again genuflected to the gun lobby. In another 5-4 opinion in McDonald v. Chicago, this time written by Justice Samuel Alito, the court extended Heller, holding that the individual right to keep and bear arms is “incorporated” by the Fourteenth Amendment’s Due Process Clause and is therefore applicable to the states and local governments.
The Second Amendment, as interpreted by Scalia and Alito, thus became the law of the land. The amendment has since been elevated in right-wing circles to the status of holy writ.
Both Heller and McDonald were based on the implausible and perverse judicial philosophy known as "originalism."
Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as voting rights and gerrymandering, union organizing, the death penalty, abortion and gun control are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century. For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.
As a tool of judicial decision-making, originalism has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.
But as an explicit judicial theory, originalism came into its own in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights should be understood according to the “original intent” of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.
When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it “new originalism”— focuses on the “original public meaning” of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.
All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.
In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell, one of the foremost authorities on the history of the Second Amendment, noted in a scathing critique published in 2011 in Dissent magazine:
“[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”
The actual history of the Second Amendment is quite different from the fantasy versions advanced by Scalia and Alito. As the late Justice John Paul Stevens, joined by three of his colleagues, wrote for the minority in Heller:
“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that thepower of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”
Although Heller and McDonald were the products of extreme rightwing judicial activism, they were technically limited in scope, as they dealt with the right to keep guns in the home. Ever since those cases were decided, however, the gun lobby has worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home.
The lobby has finally found its vehicle in a new case--New York State Pistol Association v. Bruen-- that will be decided by the end of June, when the court completes its current term.
Bruenwas brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places limits on the issuance of concealed weapons permits to carry guns outside the home. Under New York’s regulatory scheme, people seeking such permits are required to demonstrate a special need for protection — “proper cause” in the words of the statute—to qualify. The NRA contends the law is unconstitutional.
After losing in the lower courts, the Bruen plaintiffs appealed to the Supreme Court, where they are likely to prevail. With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on the bench. No longer constrained by the need for caution and compromise, they are set to dramatically extend gun rights under the Second Amendment.
Originalism was front and center during the oral arguments the court heard in the case last November.
During the arguments, the Justices paid scant attention to the dire consequences of unleashing more guns on the streets and subways of present-day New York City. They instead peppered the attorneys for both sides with questions about the origins under Anglo-American law of the right to carry arms in public places. At several points in the two-hour session, the attorneys were asked to share their thoughts on whether the Statute of Northampton, an act of the English Parliament passed in 1328, banned the carrying of weapons other than by the king’s servants in fairs and markets.
The questioning would have made for an amusing Saturday Night Live or Monty Python skit, but this was no stand-up bit. Commenting on the oral arguments, Professor Cornell told the BBC it was “beyond ironic” that anyone would look to Medieval England for resolution of the case. "It just doesn't make any sense whatsoever to anyone who really understands the complexity of English history. Obviously, that doesn't include many people in the gun rights community or many people sitting on some courts in America."
Should the New York statute be declared unconstitutional, similar measures in California, New Jersey, Delaware, Hawaii, Maryland, Massachusetts, Connecticut, and elsewhere will likely fall, with dire and deadly consequences for public safety. Worse still, depending on the scope of the court's ruling, other gun-control laws on background checks and the sale of assault weapons and high-capacity magazines could become vulnerable to constitutional challenges.
The gun homicide rate in the United States is nearly eight times higher than the rate in Canada, and a whopping 100 times higher than in Britain. This year is shaping up to be particularly horrific. As of May 30, the United States had recorded 17,817 deaths from firearms, counting both suicides and unlawful killings, according to the Washington, D.C.-based Gun Violence Archive. We also had recorded 228 mass shootings (defined as an event involving four or more victims).
In any sane democracy, one might expect the highest court in the land to step in and do something to uphold sensible gun-control regulations when given the opportunity. But in fact, our Supreme Court is poised to do just the opposite. Keep that in mind when the next mass shooting inevitably occurs, perhaps in a neighborhood close to your own.
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https://www.theatlantic.com/politics/archive/2019/07/clarence-thomas-trump/593596/
no lnx
The Clarence Thomas Effect
The notoriously quiet Supreme Court justice has had a far-reaching influence on the personnel of the Trump administration, which may be his most lasting legacy.
By Emma Green
JULY 10, 2019
Clarence Thomas is the longest-serving justice currently sitting on the Supreme Court. For much of his tenure, court watchers and critics have dismissed his jurisprudence as largely irrelevant, demoting him to the late Justice Antonin Scalia’s judicial sidekick. In the public imagination, he is most remembered for his worst moment. Last fall’s confirmation hearings for Justice Brett Kavanaugh resurrected the debate over Anita Hill, the woman who famously accused Thomas of sexual harassment during his 1991 confirmation hearings.
And yet, during his time on the Court, Thomas has written prolifically and introduced ideas that have gradually gained influence among other justices. Of all the Supreme Court justices, Thomas takes an approach to the law that is arguably the purest embodiment of the conservative judicial philosophies known astextualism, which holds that the plain meaning of the text of a law is all that matters in judicial interpretation, and originalism, which holds that the Constitution should be interpreted only as its authors intended.
The most significant part of Thomas’s legacy, however, may take shape long after he has stopped writing opinions.Personnel is policy. Thomas’s vast network, more than that of any other justice, has defined President Donald Trump’s administration and the federal judiciary Trump has built. Through his clerks and mentees, the notoriously silent justice may end up with an outsize voice in the legal system for years to come.
Numbers are the first evidence of the sizable Thomas effect. He has had more of his former clerks nominated to federal judgeships under Trump than any other justice, past or present: 10, compared with Anthony Kennedy’s seven and Scalia’s five. Roughly one-fifth of Thomas’s former clerks either are in the Trump administration or have been nominated to the federal bench by the president. The clerks whom Thomas trained, has mentored, and actively stays in touch with are taking up lifetime appointments, and on the whole, they are quite young: Allison Jones Rushing, who now sits on the Fourth Circuit Court of Appeals, is just in her mid-30s.
[Read: Conservative women are leading the defense of Kavanaugh]
These relatively small numbers offer insight into the broad influence Thomas has had on the Trump-era legal establishment. Even clerks who aren’t in formal positions of public service have gained prominence under Trump: Laura Ingraham, the conservative commentator who clerked for Thomas during his early years on the bench, has hosted one of the top-rated programs on Fox News since October 2017 and is an outspoken supporter of the president. Another former clerk, Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, has been one of the most vocal advocates for Trump’s judicial nominees, including Kavanaugh.
The Thomas effect started taking shape early on in the Trump administration. As Slate’s Dahlia Lithwick and Mark Joseph Stern noted as early as mid-2017, when the pattern was still nascent, “Everywhere you turn in Trumpland, you’ll find a slew of Thomas’ former clerks in high places.” In part, this effect may have been driven by the people making the hires. Gregory Katsas, who clerked for Thomas on the D.C. Circuit and the Supreme Court, joined the Trump administration right after the inauguration as a deputy assistant to the president and deputy counsel. Later, when Katsas was nominated to his own judgeship on the D.C. Circuit Court, he told U.S. senators that he had been involved in “interviewing and recommending candidates for various executive and judicial appointments.”
At least three other people who have worked in Trump’s White House counsel’s office are also former Thomas clerks: John Eisenberg, David Morrell, and Kate Todd. When the Trump administration released its list of potential Supreme Court nominees in November 2017, four former Thomas clerks were included: Thomas Lee, Margaret Ryan, David Stras, and Allison Eid.
Any new administration has a huge number of positions to fill across the executive branch. When Trump took office, he also faced significant judicial vacancies—142 empty seats, according to data from the American Bar Association. By comparison, when Barack Obama took office in 2008, there were only 53 federal judicial vacancies. These jobs are filled like any other: through personal networks and recommendations. Under Trump, the most influential source of potential candidates for these vacancies has been the Federalist Society,a professional network for conservative and libertarian lawyers. “It happens that a lot of the people in the White House counsel’s office are Federalist Society members, and as a result of having been Federalist Society members, they have their own set of contacts,” said John Malcolm, who works on judicial issues at the Heritage Foundation and is chairman of the Federalist Society’s criminal-law practice group. The organization’s executive vice president, Leonard Leo, has had an influential role in advising the Trump administration on possible nominees.
Although stories about the Federalist Society often focus on the intellectual role and legacy of the late Justice Scalia, who was an early faculty adviser to the group at the University of Chicago, Thomas is a central figure in the Federalist Society universe.William Eskridge, a law professor at Yale known for his work on LGBTQ legal issues, told me the Federalist Society is “a social circle. It’s a professional circle. It’s a circle that gives [the justices] law clerks. It’s a circle that gives them positive publicity.” And, he added, “Thomas is at the center of that.”
[Read: The Supreme Court hands a victory to the pro-life movement]
Scalia famously described himself as a “fainthearted originalist,” although he later repudiated that label. By contrast, Thomas’s originalism has been “unflinching,” as one conservative law professor wrote in a recent column for The New York Times.Scalia himself told a Thomas biographer that Thomas does not believe in the legal principle of generally following settled precedent. “Among Federalist Society members, he probably would be their No. 1 favorite justice of anyone on the Court,” Severino told me. “As wonderful as Justice Scalia is, Thomas is someone who has inspired a lot of young lawyers.”
The Thomas effect may be due to more than just the power of networks, however. Thomas has been on the Supreme Court bench since 1991, and his clerks are entering their professional peaks during a Republican administration. Several former clerks told me Thomas goes out of his way to stay in touch with his clerks and cultivate their careers; they have monthly lunches and regularly get together for intergenerational reunions. Each year, Thomas takes his clerks on a field trip to the site of the deadliest battle in the Civil War. “I want them to go to Gettysburgand to think about … the price that was paid for this country to exist,” he said in an interview with the appeals-court judge Diane Sykes at a Federalist Society event in 2013. “I love my law clerks,” Thomas added. “These kids are my family.”
Thomas’s clerks tend to fit a particular profile. They come from all over the country, including law schools outside the Ivy League, which makes them particularly suitable candidates for federal judgeships. “Judges have to have ties to the local area typically,” said Saikrishna Prakash, a former Thomas clerk and professor of law at the University of Virginia. “The Thomas clerks, because they come from more regions in the country, and certainly go to law schools all over the country, are more apt to go outside of the I-95 corridor.” After their clerkships, these lawyers often go into public service, taking up positions in U.S. attorneys’ offices or as professors, which means they don’t mind the pay cut that often comes with a move to the federal bench. (A federal district-court judge can expect to make slightly more than $200,000 a year; by comparison, partners at top-tier law firms can earn multimillion-dollar salaries.)And, like Thomas, they tend to be very conservative, committed originalists and textualists. As Eskridge put it, they are true believers.
The Trump administration’s most marked achievement in terms of shifting the federal judiciary has come through Circuit Courts of Appeals.Trump has far outpaced his recent predecessors, with 42 confirmed appointments to these courts over the past two and a half years; by comparison, Obama had gotten less than half as many appeals-court judges confirmed by this point in his first term. These seats are where Thomas clerks will have the most influence—and are outpacing the former clerks for conservative justices. Former Thomas clerks have now been confirmed to the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits, along with two judges confirmed to the D.C. Circuit Court of Appeals—Katsas and Neomi Rao, the former head of Trump’s Office of Information and Regulatory Affairs. The D.C. Circuit is particularly influential, because it is responsible for reviewing the actions of federal agencies; in recent years, it has issued important decisions on topics ranging from Obamacare to gun rights.
Thomas is famously silent during oral arguments. But as a writer, he has been prolific:He wrote the most concurrences, dissents, and opinions of any justice during each of the past five terms, according to data from SCOTUSblog. Over time, his work has significantly shifted the window of acceptable legal opinions on various issues, said John Yoo, a former Thomas clerk and law professor at UC Berkeley who is best known for his work on the George W. Bush administration’s torture memos. “When I clerked for him, he published some opinions I thought were really radical, and the legal profession would never be interested,” Yoo told me. “Now those opinions are heavily debated in law schools and are very influential.” He specifically mentioned Thomas’s concurrence in a 1995 case on affirmative action, Adarand v. Peña, and another concurrence in a case on the Constitution’s commerce clause, United States v. Lopez.
On the Court, Thomas’s purist approach may cost him the ability to convince his fellow justices on controversial cases. “He’s less of a traditional politician,” Yoo told me. “I think he’s more interested in saying, ‘This is the correct view of the Constitution,’ rather than assembling five votes. And that’s a trade-off.” Thomas’s views often come out in dissents or concurrences, offered solo or joined by just one or two other justices.“He has not, until recently, written any of the blockbuster majority opinions,” Yoo said, “because to do that, you have to horse-trade to get votes.” (Notable majority opinions by Thomas include a 2001 case concerning the rights of a religious student group, Good News Club v. Milford Central School, and a 2018 First Amendment case involving a crisis-pregnancy center, NIFLA v. Becerra.)
This is all the more reason the rise of Thomas’s former clerks is important. His approach to controversial legal questions—generally opposing affirmative action, favoring limited power for federal agencies, defending gun rights, and more—has been developed and popularized over his decades on the bench, and will be carried forward by a new generation of judges. He openly defies what he sees as bad precedent—just last month, Thomas wrote in a concurrence that “the Constitution itself is silent on abortion.”
[Adam Cohen: Clarence Thomas knows nothing of my work]
Other conservative justices’ clerks have had a significant footprint in the Trump administration. Two of former Justice Anthony Kennedy’s clerks, Neil Gorsuch and Brett Kavanaugh, now sit on the Supreme Court. Trump’s secretary of health and human services, Alex Azar, and his solicitor general, Noel Francisco, both clerked for Scalia, as did the White House counselor Emmet Flood and the recently confirmed Seventh Circuit judge, Amy Coney Barrett, who is widely thought to be on Trump’s short list for any potential future Supreme Court slots.
Thomas’s influence, however, is particularly broad, reaching from the Department of Justice to the White House to the federal bench. Thomas is now 71 years old. If he follows the path of his colleagues Stephen Breyer and Ruth Bader Ginsburg, who are both in their 80s, he could easily have a decade or more to go on the Supreme Court. His greatest legacy, however, may be in the intellectual seeds he has planted in the generation of lawyers who came up studying his work.
Olivia Paschal contributed reporting to this article.
Emma Green is a former staff writer at The Atlantic.
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https://www.alternet.org/2021/08/antonin-scalia/
ah
During his eight years as president, Ronald Reagan appointed three justices to the U.S. Supreme Court: Sandra Day O'Connor in 1981, libertarian Anthony Kennedy in 1987 and far-right social conservative Antonin Scalia in 1986. Scalia was by far the most extreme of the three, and law professor Eric Segall examines the late jurist's influence in a scathing article published this week by the Dorf on Law blog.
Segall doesn't mince words in his article. The law professor, who teaches at Georgia State University, slams Scalia (who died in 2016) as an extremist and a reactionary who was hostile to "women, people of color, LGBTQ folks, and non-Christians." What he finds so disturbing, though, is that many public figures continue to honor Scalia and venerate him as an upstanding example of a justice.
"Justice Scalia's opinions and heated rhetoric in civil rights cases should disturb people of even moderate sensibilities," Segall explains. "It must be remembered, of course, that Supreme Court justices should be judged according to the values of the times in which they lived. There are numerous Supreme Court Justices, maybe most justices prior to 1954, who we still honor and who undoubtedly held racist, sexist, and anti-LGBTQ views. But Justice Scalia made all of the statements…. in the last 35 years."
Segall goes on to cite specific examples.
"In 1996," the law professor notes, "he was the only dissenter in a case requiring the Virginia Military Institute, an elite state-funded military college, to accept women after it refused to do so for over a century. Scalia argued that courts should defer to all but the most irrational of laws that discriminate against women. Even Chief Justice William Rehnquist, an opponent of civil rights progress for decades, disagreed with Scalia in the VMI case."
Segall notes that Scalia "voted to strike down every affirmative action law he ever faced," and his "dissents and rhetoric about gays and lesbians bordered on the medieval." One of those dissents was in 2003's Lawrence v. Texas, a landmark ruling that struck down a sodomy law in the Lone Star State as unconstitutional.
"In another case," Segall observes, "Scalia compared homosexual conduct to murder and bestiality. When he was later asked about these statements by a gay Princeton student, he responded, 'If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don't apologize for the things I raise.'"
And despite the fact that Scalia is held up as a principled advocate of "originalist" interpretationof the Constitution, Segall contends that his methodology was highly selective. Scalia only appealed to originalist ideas when they suited his purpose, and he was often happy to overlook historical arguments about what the framers thought when he wanted to achieve an ideological objective, according to Segall.
In light of all this, Segall is highly critical of law schools that have decided to honor Scalia.
"The Republican Party still views Scalia as their hero, but that is what we would expect from a political party either hostile to or indifferent towards the issues facing people of color, women, religious minorities, and the LGBTQ community," Segall writes. "But law schools and great universities should know better…. The myth that Antonin Scalia was a principled, great jurist is one of the most dangerous misconceptions in American politics. He thought nothing of disparaging people unlike him as well as insulting even his fellow justices. Far from being a role model for our law students, he should be an example of how judges should not act."
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https://www.alternet.org/2019/10/republicans-fantasy-constitution-trumps-attack-on-the-constitution-is-nothing-new-for-the-right-which-has-long-tried-to-write-its-own-version/
no lnx
Republicans’ fantasy Constitution: Trump’s attack on the Constitution is nothing new for the right — which has long tried to write its own version
Written by Paul Rosenberg / Salon October 28, 2019
Donald Trump’s recent criticism of the “phony emoluments clause,” used in defense of his since-abandoned G7 scam, was striking for its bluntness. But it’s part of a long history of conservatives flagrantly ignoring the actual Constitution and substituting an imaginary version in its place. At Vox, Ian Millhiser thoroughly debunked the notion that Trump wasn’t violating the Constitution by seeking to hold a summit meeting at his own hotel, including reference to work by Georgetown’s John Mikhail, whose examination of 40 different dictionaries made mincemeat of any “public meaning” argument to try to defend Trump.
Of course Trump doesn’t care about such arguments, and doesn’t rely on typical conservative legal arguments either. But he does rely on the underlying conservative impulse and assumption that the Constitution means whatever he wants it to mean, and that anyone who disagrees with him is subversive.
This view can be found in the so-called “constitutional sheriff’s” movement, which believes that county sheriffs get to pick and chose which laws to enforce and can keep federal law enforcement agents out of their counties. Tellingly, the word “sheriff” — like the word “God” — doesn’t even appear in the Constitution. Trump’s favorite convict sheriff, Joe Arpaio of Arizona, is a member of this movement. The far-right “Oathkeepers” movement has a similar fantasy-based view of the special constitutional status of anyone who’s sworn an oath to serve the government — and who then decides they’ve got a secret identity as a Supreme Court justice.
But don’t be fooled into thinking this is just a fringe conservative view. Dangerous and troubling as these views and that organization may be, it’s the conservative constitutional fantasies from the actual Supreme Court that have done far more damage to our democracy. Take, for example, the Dred Scott decision of 1857, written by Chief Justice Roger Taney, which held that black people had no constitutional rights because when it was adopted, they were regarded as “so far inferior that they had no rights which the white man was bound to respect.” What’s more, Taney claimed, “This opinion was at that time fixed and universal in the civilized portion of the white race.”
That was a lie, as I explained here, based on a fantasy past. In the real past, slavery was abolished in the Vermont Republic in 1777, well before the Constitution was drafted, and Quock Walker sued for and won his freedom under the Massachusetts Constitution in 1781 — again, before the Constitution was drafted.
Walker’s case deserves closer inspection to show specifically how wrong Taney was. Walker had been promised his freedom, but his master died before the promised date, and his widow married a man who not only refused to free Walker, but beat him as well. Walker won not one, but two civil jury trials, both of which affirmed his freedom and awarded monetary damages, after which the man who had abused him was convicted in criminal trial.
In his charge to the jury, Chief Justice William Cushing stated that, “slavery is … as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.” That unambiguous recognition of “the granting of rights and privileges” directly contradict Taney’s false premise in Dred Scott. The “fixed and universal” opinion he wrote about was a racist fantasy.
There was also a future fantasy involved in the Dred Scott decision — the fantasy that the decision would put an end to abolitionism,, and secure the institution of slavery once and for all. Instead, it only fueled the dynamic which eventually brought the Civil War, which was initiated by the South, based on yet another fantasy — the one about absolute states’ rights (except, of course, when it came to forcing Northern states to return escaped slaves.)
The fantasy of corporate personhood
After that terrible struggle, we passed the Civil War amendments to firmly establish the full citizenship rights of black Americans, which in turn would become the subject of multiple conservative fantasies, primarily involving the 14th Amendment. First was the fantasy — still haunting us today — that the 14th Amendment established “corporate personhood” and was actually intended to protect corporations as much as freed slaves and their descendants. This fantasy, too, came to us from the Supreme Court, though in a remarkably muddled way, as UCLA law professor Adam Winkler describes here.
In Santa Clara County v. Southern Pacific Railroad Company, the court reporter (a former railroad president) inserted a headnote saying that justices agreed that corporations were people under the meaning of the 14th Amendment, even though the decision itself said nothing at all on the subject. To this day, that case is mistakenly cited as precedent establishing corporate personhood, despite its silence. One of the justices hearing the case, Stephen J. Field, got the ball rolling, as Winkler explains:
A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.
That’s only one facet of how muddled the story is, as Winkler explains. The idea was first advanced in 1882 by Roscoe Conkling, a lawyer for Southern Pacific who was the last living member of the drafting committee responsible for writing the 14th Amendment. Conkling told the Court that the drafters had altered the wording, replacing “citizens” with “persons” specifically to cover corporations as well. There’s no other evidence supporting this claim, and substantial reason to doubt it. An unpublished journal of the committee’s deliberations that Conklin offered in support was later found to completely contradict his claim: The language had never been changed. “So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions,” Winkler notes, nor had anyone else on the committee ever made such a claim.
Even at the time, Conkling’s account was suspect, according to Winkler. He made the argument in a case that languished for three years before Southern Pacific suddenly settled it, after which the railroad brought a nearly identical case to the Supreme Court, with the same legal team — except for Conklin. “Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal,” Winkler notes. “Had those lawyers believed Conkling, it would have been malpractice to leave out his story.”
So everything else was premised on Conklin’s lie, which even his own colleagues didn’t believe. But there were so many other bad actors involved, it was like a Trump Cabinet meeting. In fact, Field sounded just like one of them, as Winkler describes:
Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”
In short, this was a collective fraud perpetrated by a whole collective of scoundrels, creating a fantasy version of the 14th Amendment that’s become deeply and profoundly embedded in American law. It was famously used, Winkler notes, to strike down numerous economic regulations, including federal child labor laws, zoning laws, and wage-and-hour laws,” at the same time that Plessy v. Ferguson (the next case on our list) refused to apply the 14th Amendment to protect the rights of African Americans:
Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.
More white supremacist fantasies
As we’ll see below, another strange wrinkle emerged in the modern era: for the Supreme Court’s hardcore conservatives, the 14th Amendment’s Equal Protection clause exists almost solely to strike down affirmative action. But first, we need to turn to Plessy v. Ferguson, in which the Court ruled that segregated facilities (supposedly “separate but equal”) did not deprive blacks of equal protection under law. It’s a much more ornate and convoluted lie than the one in Dred Scott, as I explained here, but to boil things down into basic fantasies, we need consider only three. First was the fantasy that the problem was all in black people’s heads:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Second came the exact opposite fantasy, that black inferiority was an immutable fact that human laws could do nothing to alter:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.
Third was the fantasy that either nothing needed to be done, or that nothing could be done:
If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
Of course, this last was pure sophistry. The civil and political rights were obviously not equal, which was why the case had been brought in the first place. And that inequality perpetuated social inequality — specifically via segregation — as indeed was the whole point. It took decades of racist terror to get to the point where such an absurd concoction of fantasies could be propounded with such seriousness. The court pretended that black civil and political rights would still be protected, even after three decades of white racist violence proved otherwise, and that they could be neatly severed from “social rights” such as riding in an integrated railroad car — that being the issue at hand in Plessy.
The fantastical nature of the Plessy decision is thrown into sharp contrast by the bracing realism of John Marshall Harlan’s dissent. “The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution,” Harlan wrote. “It cannot be justified upon any legal grounds.” The phrase “badge of servitude” comes directly from the 13th Amendment, underscoring the broader context that gave meaning to the 14th Amendment’s Equal Protection Clause.
Next, fast forward a century to Bush v. Gore, the case that settled the 2000 presidential election. In that instance, conservative justices who had never applied the Equal Protection Clause to defend black voting rights suddenly discovered its overwhelming importance in protecting the rights of ballots to be counted equally — by paradoxically ensuring that no ballots were counted at all! There was never any thought of who the voters casting the ballots might be, much less whether they could possibly constitute a class, as Equal Protection jurisdiction normally requires. It was not just a fantasy, but a farce.
Rather than dig into the details of the case, I’ll merely draw on a big-picture observation made by Geoffrey R. Stone, an editor of the Supreme Court Review, whom I quoted from here in July. Stone noted that the three hardcore conservatives on the court at that time — William Rehnquist, Antonin Scalia and Clarence Thomas—had cast 65 votes in non-unanimous decisions interpreting the Equal Protection Clause in the previous decade, 19 of which involved affirmative action. Collectively, they’d cast exactly two votes finding Equal Protection Clause violations in those cases — one less vote in an entire decade than they cast in the Bush v. Gore decision. Summing up, Stone wrote:
What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes — to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.
Put simply, the Equal Protection Clause those justices recognized does not exist. It was a bad-faith fantasy of their own invention.
Fantasies of guns and God
Race is clearly a major driver of conservative constitutional fantasies. But it’s not the only one, as shown by the Court’s Heller decision, the first ever recognize an individual right to gun ownership in the Second Amendment — a position that former Chief Justice Warren Burger (a Republican appointee) once called “a fraud on the American public.” The decision by Antonin Scalia was so roundly criticized that Scalia co-authored a book in its defense, “Reading Law: The Interpretation of Legal Texts,” which was ripped to shreds by then-appeals court judge Richard Posner, in a devastating review titled “The Incoherence of Antonin Scalia.” To be clear, both Burger and Posner were highly respected conservative jurists. But they were not fantasists when it came to the Second Amendment.
Posner has a great deal to say about Scalia more generally, but my point is simple: Scalia claimed to be a textualist, but he completely ignored the following italicized text of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
That text clearly articulates a collective need, thereby justifying a collective right. This is how the Second Amendment had always been understood, until, as Michael Waldman explained, the National Rifle Association embarked on a multi-decade propaganda campaign to brainwash the American public. Brainwashing can effectively spread a fantasy. But it is powerless to transform it into truth.
Just as the NRA waged a decades-long propaganda war to push their constitutional fantasy through the Supreme Court, many on the religious right are organizing to do the same with the First Amendment now. They’d like to use their fantasy version of “religious freedom” as a license to discriminate, and ultimately create a two-tiered society, just like the one enshrined long ago by Plessy. They’ve at least gotten their foot in the door with decisions like Hobby Lobby and Masterpiece Cakeshop.
Progressive activists, both secular and religious, have been fighting back in recent years, particularly focused on reclaiming the true meaning of Religious Freedom Day, as I’ve written about here in 2016, 2017, 2018 and 2019. I’ve also written repeatedly about Project Blitz (here, here, here and here), a state-level campaign employing this “religious freedom” fantasy to advance a three-stage, state-level theocratic agenda, first uncovered by researcher Frederick Clarkson last year. All this is embodied in a more sweeping fantasy of America as a Christian nation, a fantasy thoroughly debunked by Andrew Seidel in “The Founding Myth: Why Christian Nationalism is Un-American” (Salon interview here), and challenged on the ground by a new initiative, Christians Against Christian Nationalism (Salon story here). Directly confronting the constitutional fantasy aspect, the third part of Seidel’s book is entitled “The Ten Commandments versus the Constitution,” and it shows how each has elements opposed to principles of the Constitution. The Supreme Court has yet to write this fantasy into law, but shown by the examples above, it would hardly be out of character for them to do so.
Beyond the examples cited — and others like them — there’s another way in which conservative constitutional fantasies lead us astray, not at the level of individual decisions, but at the level of judicial philosophy. I already mentioned Posner’s refutation of Scalia’s version of textual originalism, but that’s only one version of the broader originalist approach, which Georgia State law professor Eric Segall dismantled in his 2018 book “Originalism as Faith,” which I wrote about here. In Segall’s view, originalism meets a lot of psychological needs, not just for judges, but for the broader public as well:
When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions.
In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.
It’s a soothing “just-so story,” in other words. But it utterly fails in practice, as Segall told me in our interview:
Virtually every constitutional law case [decided by the Supreme Court] involves text that is imprecise, unclear, vague — equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don’t necessarily assume.
Thus, originalism is worthless at best. At worst, it’s a smokescreen for bad decisions:
The main argument in my book is that originalism doesn’t do anything. It’s never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they’re doing what they’re doing — for transparency purposes.
But transparency is the last thing that the conservative peddlers of constitutional fantasies want. They didn’t want it in Dred Scott, nor in Plessy, Santa Clara, Heller or Bush v. Gore. At bottom, President Trump’s “phony emoluments clause” was nothing new for conservatives. In fact, it was part of a very long tradition. You might even say it was evidence that he’s a true conservative after all!
Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.
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