“Originalism” RIP 🪦

I tend to think the three liberals are correct that "the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office."

Reading the opinion that way, you easily see how it forecloses any enforcement of the insurrection clause.

— Mark Joseph Stern (@mjs_DC) March 5, 2024

I don’t always agree with MJS, though I think I agree with him more than Luttig. Although I don’t agree with him as often as I do rusty pickup. 🛻 

One obvious discrepancy: The majority suggests in dicta that the criminal insurrection statute (§ 2383) could satisfy its new standard for congressional enforcement of Section 3.

The liberals don't seem to buy it. Why? They don't say outright, but we can speculate ...

— Mark Joseph Stern (@mjs_DC) March 5, 2024

Which is only to say, this is an interesting conversation:

It's easy to envision—and maybe the liberals did envision—SCOTUS saying the enforcement of § 2383 against a specific person to disqualify them from the ballot isn't congruent and proportional to the Constitution because it doesn't line up well enough with the insurrection clause.

— Mark Joseph Stern (@mjs_DC) March 5, 2024

Anyway, these are just Day 2 noodlings about a vague, overbroad majority opinion that doesn't line up with the "concurrence"—which itself got changed from a dissent to a concurrence at the last minute. Maybe SCOTUS should have taken the narrower route endorsed by the four women?

— Mark Joseph Stern (@mjs_DC) March 5, 2024

Especially when he uses the example of Shelby County (when CJ Roberts started gutting the VRA). Minds alike, and all that.

George Conway thinks the entire bench was afraid of handing down Son of Bush v Gore.

But that is all just prelude to this, which is much more interesting:

At the core, all important supreme court decisions are political. If the language or application of the law was clear the case would never make it to the court. Even something that appears simple, like "Congress shall make no law... abridging the freedom of speech" is immediately unclear when it intersects with the reality of the limits thereof. Does it include threatening speech? Are the arts speech? And so on. There are no balls and strikes here, it is ultimately a political decision on the breadth and limits. Traditionally the court tried to limit the consequences by only ruling on the facts in front of them, since there could be unintended consequences and no one could fully foresee how a ruling would impact similar but not identical situations. The court took other steps to limit the political decision making by limiting it's review to actual controversies for example.

The current court is in contrast to earlier courts, even the courts it despises like the Warren court, a cascade of failures. Putting aside the political content of its decisions (which I find generally abhorrent), it continues to find new depths of failure. I've commented before that the very low review of cases is an abdication of a basic function of any supreme court, providing guidance and clarity to the law that can then be applied by the legal community to guide and counsel clients. The court has added to that failure a number of others. I was struck while listening to the oral arguments for the EPA case on reducing ozone across states how much the current court has degraded the entire legal process. The case was lifted straight from the district court to the supreme court. The justification was the urgency of the case. When the solicitor general of Ohio was presenting, one of the liberal judges was asking about the justification for the case even being at the court. When the urgency was mentioned, the justice asked if the plaintiff had requested expedited review from the lower court. The answer was no. Stunning. As the justice then pointed out, the supreme court was acting as the court of first instance. There had been no fact finding, no hearing of witnesses, no entry of exhibits. There were literally no facts on which to decide the case. The solicitors arguments were completely conclusionary. The EPA decision was bad because it was bad, and it would cause harm. How much harm? When would the harm occur? (The supposed harm was at some unspecified future date). There hadn't been any hearing to create a basis for these statements. As it turned out, it didn't matter. The conservative majority immediately started referring to these harmful decisions of the EPA. The plaintiffs didn't need to present a reasonable argument or recitation of facts because they knew the conservative majority didn't need one. They already agreed on the outcome, the only need was to get the case in front of the court in any manner. The conclusion of court observers is the plaintiffs will win over the EPA.

This court has made the entire process political. What used to be reasonably objective is now political. Standing is political. In the student load case the state was given standing to represent a separate corporate entity that didn't want to bring the case, and that entity would only be impacted under a very strange set of circumstances that the entity itself would have to invoke. For this court that was sufficient whereas in previous courts the case wouldn't have been heard even at the district court. Currently there is the abortion pill case, where doctors have standing because they might suffer "psychic harm" by treating patients that took the pills and have regrets. Prior courts would have found this laughable. Case and controversy is political. The prayer at the football game case was fabricated, the coach was never at risk for job loss for praying. In 603 Creative, the website designer (who never created a website) was never asked to host a gay wedding. (Which conveniently meant that there wasn't a party on the other side to argue they had suffered discrimination by the web designer. The court only wanted one side to be sympathetic.) Even facts are political, the court making up factual strawmen to which they then respond with the decisions they desire to issue (603 Creative, the prayer case and many more).

The consequence of playing so fast and loose with all the previous requirements to bring a case to the court has resulted in the court playing equally loose with the opinions. The most recent 14th amendment case has been rightly savaged for inconsistencies, lack of any academic rigor, and conflict with other decisions. It's not the only case. The broad second amendment case knocking down the NY gun permit system was based on reasoning that historically there were no restrictions on guns at the time of the second amendment. That rational probably sounded great in a some Federalist Society presentation, but it started to look ridiculous this term when the same reasoning would clearly allow domestic violence perpetrators to keep their weapons. Since even the idea of domestic violence didn't exist at that time, there is certainly no basis to take away firearms from those people. It's going to be hard to sell the public on the importance of arming domestic abusers to kill their families and spouses, while systematically stripping rights from women, minorities and the LGBTQ community. I can't decide if the ever increasing use of the shadow docket is better or worse. Worse, because we get precedential decisions that have no justification at all, leaving conservative lower courts to push the limits of these cases unbounded by a written opinion. Better perhaps because you can at least those cases are limited to their facts, where as the opinions being generated are so poor they lead to even worse decisions down the road, like arming domestic abusers.

The court further makes everything political by blatantly engaging in bias. Accepting lavish gifts (Thomas and Alito), hob-knobbing with the ultra-wealthy and powerful (all of the conservatives), family members reaping large rewards based on connections to the justices (Roberts' wife earning $10M placing lawyers at firms that appear before the court, Ginny Thomas, etc.). Roberts touted his ethics rules, and then promptly violated them along with the other conservative justices by failing to explain why they were recusing themselves from cases. The same has happened with travel.

I fault the three liberal justices here too. They have placed maintaining the institution of the court over real ethical reform. It would hurt the court in the short term to point out these failings, but it would save the court in the long term to rid it of these harms. Perhaps there is starting to be a glimmer of the awareness from the three. Last term in the dissent to the student loan case, one of the justices (I don't have time to look up which one), stated that in light of actual language that allowed the secretary of education to modify loans, the court itself was acting in an unconstitutional manner with the decision. The comment was ignored, but a constitutional scholar at the time said it was astonishing, they couldn't recall any other case where a justice said the court was acting unconstitutionally. In this case we have the three justices semi-aggressively attacking the majority opinion. Not just disagreeing, but attacking the foundation of the decision. It will be interesting to see if this portends a more aggressive approach to the majority, or if the three will return to defending the institution of the court. Even if they are more outspoken, I have a hard time seeing that it will effect the behavior of the conservative majority. (Although Justice Barret clearly took umbrage with her scolding remarks to the majority).

And then there’s the analysis that “originalism” has been proven, again, to be a fraud. Then again, Scalia, the father of that jurisprudence, always trotted it out to justify his opposition, and never to consistently @call balls and strikes.” This is Scalia’s court. That is the institution now. That’s what the justices, all nine of them, are defending.

And yes, it is a fraud. Giants once walked among us. Great legal minds capable of profound legal analysis. I’ve read their works. Scalia and the justices who follow in his footsteps can’t carry the robe bags of those giants. Their legal reasoning is all reducible to simple expressions of power: they are the Supreme Court. They have declared themselves the final arbiter. They are beyond review and outside of investigation, and serve for life because they say so. The dead hand of tradition is their right. Their assertion of their power is their authority. It isn’t what they rule that matters, or ever has; it’s how. But they don’t even bother with “how” anymore. “Because” is their right.

Except it isn’t. It never has been. It never can be. Originalism was always just “because.” Scalia sold it as more than that, but it was a shell game, and he knew it. He hid the ball repeatedly, and you were the one who didn’t follow. But he knew it was a dalliance, and he never relied on it when he might be responsible for the outcome. That’s why he used it in opposition. But his disciples and students on the Court now missed that lesson. They don’t understand the she’ll fame depends on the patter; and on nothing really being at stake.

They abandon originalism just as Scalia did, but not as artfully. They aren’t in on the con, and so they con themselves. Another stain Donald Trump has left on our nation. Or maybe we let all this happen, and it’s up to us to set things right.

Got to understand the con first, regardless.