Tuesday, June 18, 2019

The "Originalist Argument" in the Cliff's Notes Version

Justice Clarence Thomas tries to step into the shoes of Antonin Scalia:

“Because the Constitution is supreme over other sources of law, it requires us to privilege its text over our own precedents when the two are in conflict,” Thomas wrote. “I am aware of no legitimate reason why a court may privilege a demonstrably erroneous interpretation of the Constitution over the Constitution itself.”

In other words:  "Your interpretation sucks.  My interpretation is what the words say."  Words, of course, don't speak.  We interpret them, even when they are spoken by someone.  Interpretation and argument over interpretation is the heart of legal reasoning.  Thomas wants to divorce interpretation from argument, because argument is hard (why else is he so silent in court?).  Even Scalia knew better than that; but Thomas doesn't.

And as for this argument:

“It’s kind of a nudge to someone like [Chief Justice] John Roberts, who surely is in the same place that [Thomas] is with regards to the substantive outcome that he’d like to see, but probably differs on the speed,” said Murray, the NYU Law professor.

She added: “He’s saying fish or cut bait — now is the time — we have five, let’s move.”

I don't see it.  Thomas may be saying it, but Thomas doesn't have the clout of Scalia, and Roberts doesn't want to burn down the authority of the court, which precipitous rulings undoing stare decisis willy-nilly and for wholly ideological reasons, would do.  The entire legal system rests on that principle.  Thomas wants to open the door to undoing not just Roe v. Wade but Brown v. Board, even Marbury v. Madison.  Notice how he doesn't detail an argument for undoing past opinions; he just says they were "wrong," as if that's enough and all that's needed.

He's dim enough to do it, and let it happen.  Roberts isn't.  The Roberts court may yet overturn Roe, but the opinion won't be written by Thomas.  Probably won't be overturned because of Thomas, either.

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