Who Will Tell The Supremes?

Let’s be honest: originalism was never anything more than a vibe. I think everyone knows this.

— New York Times Pitchbot (@DougJBalloon) May 5, 2024

The legitimacy of the Court rests on perception. Scalia was perceived as Benjamin Cardozo and Learned Hand’s love child. But he never stood among such giants; his friend RBG did. But she had to be recognized, and Scalia purchased his recognition much the way Solomon purchased his reputation for wisdom (just go with me on that one). Scalia really purchased it by inventing “originalism,” which, largely because of my training in literary analysis, I knew was baseless bullshit.

In brief, modern literary theory (and the work of Derrida, among others), divorces the text from the author ab initio. You can (in the case of Hemingway, especially), connect the author’s biography to the text; or the history of the author’s times (Shakespearean studies especially benefit here), but crossing over from the text to authorial intent, is a mug’s game.

Originalism plays that game, but it’s a completely illegitimate leap from the statute or constitution provision to the intent of the Congress (all 500+ of them?), or the men at the constitutional convention (or when an amendment was drafted).

There is a standard statutory analysis in law that does examine legislative history, when necessary. Originalism piggy backs on that, but also supplants it, because that leg of analysis is one among many, and never tries to divine intent of the authors as the last word. And certainly not the first word; which is where originalism turns statutory interpretation on its head. Originalism allows judges to replace all the tools of statutory and constitutional analysis with the preferences of the judge/justice. It always remarkable how the intent of the Founders (who were of one mind on all things, right?) coincides with the thoughts of Scalia or Thomas or Alito or Barrett. Standard legal analysis, even at the dangerous level of determining legislative intent, recognizes this problem. Originalism declares that problem the solution.

And there our problems begin.

Modern literary analysis understands that reading is interpretation; which means no interpretation can be definitive. This is not a “post-modern” invention. Midrash is the conversation over centuries about the Torah. The gospels themselves provide four different versions of Jesus of Nazareth. Which is the true original? Originalists say there is one, and they know which it is. Nothing in the history of legal analysis supports such a blinkered method, and even Scalia only used it when it suited him, more often in dissent than in the majority. 

Mostly he used it to tell people how smart he was for coming up with it. He never mentioned his real genius was in selling it to journalists so gullible they thought he must be smart. But then, he was smart enough not to give the game away. And he was a Supreme, so he had the position, and with enough power to sell his BS and tell people it was gold.

Am I trying to say it’s all a con? Yes; yes, I absolutely am. And what does that do for the legitimacy of the Court? Nothing good; nothing good at all.