Things Already Decided

 Amy Coney Barrett:

According to Trump’s last appointee to the court, who replaced the late liberal Justice Ruth Bader Ginsburg in 2020, “It would imply strong presidential power over executive agencies. There has been a lot of debate and some new originalist scholarship debating right now whether indeed it has sound originalist credentials. But yes, it is one that has traditionally been associated with originalists.”

First, let me be clear that "originalist" scholarship in jurisprudence is an oxymoron.  "Originalism," as I've said before, is bunk.  It's an elaborate excuse for promoting preferred outcomes of a handful of ideologues who worship at the altar of Antonin Scalia, who had the mind Kissinger attributed to Nixon:  a "meatball mind."  Scalia pulled "originalism" out as his excuse to be contrarian and ideological in his dissents; he never relied on it for a majority opinion (else it wouldn't have been the majority opinion, and Scalia knew it. He also just used it to lob bombs and get noticed.  He was the Newt Gingrich of the Supreme Court, except he was never the Chief Justice to Gingrich's Speaker of the House.). The great irony is that there are now “scholars” of originalism. Which strikes me as being as absurd as scholars of legal positivism. It’s like saying there are scholars of flat earth “theory,” or “hollow earth” theory.

I discard them.

That said, the phrase "some new originalist scholarship debating right now" whether the "unitary executive" has "sound originalist credentials" certainly hints at what the Federalist papers (at least), warned against:  putting a toddler with a shotgun in the office of the President.  Which the Supremes didn't exactly do, so much as they made him think he was: a) not a toddler; and b) that he was invisible and bulletproof.  All they meant to do was to protect the office from criminal investigations, a circumstance that in the history of the Republic had only come up with Donald Trump's acts in his last days (the MAL case was not affected by Trump v. US).  It was a blatant attempt to immunize Trump alone, to be clear.  But it was meant to preserve their precious concept of a "unitary executive" more than it was meant to keep Trump out of jail.  Or put him back in office (clearly the fraud conviction in New York was not enough to dissuade voters from returning Trump to office.  There's no reason to believe conviction on charges arising from January 6th would have affected the electorate otherwise.)  They protected Trump.  And Trump gleefully ran with it, rather than reflect on his brush with disaster.

So Trump has turned into the Federalist papers’ worst nightmare.  And the Roberts court stands fairly to blame.  And now whether the "unitary executive" has "sound originalist credentials" is under examination precisely because of what the theory has wrought.  In the interview, Barrett tried to evade the consequences her jurisprudence as quickly wrought, by arguing, in essence, that maybe their timing was bad:

“Just as the court must take account of the consequences on the institutional dynamics, say, between a current president and a future president, the balance of power between the executive branch and the legislative branch, that of course, those same kinds of institutional concerns for the long run are ones that play a part in the court’s separation of powers decisions and always have, because they also are reflected in concerns of the constitutional structure.”

Unsatisfied with the lack of clarity in her answer, Douthat pressed, “OK, let me try that again: If a president defied the Supreme Court, what would you do?”

Coney Barrett then admitted that the court’s hands would largely be tied because there is a limited enforcement mechanism at its disposal.

“Well, as you say, the court lacks the power of the purse. We lack the power of the sword,” she conceded. “And so, we interpret the Constitution, we draw on precedents, we have these questions of structure, and we make the most with the tools that we have.” 

Shorter Barrett: they didn’t really anticipate Trump. But one of the tools they had at hand was 2 centuries of jurisprudence (schools of legal thought) and constitutional law (and its reasoning) to draw on, and the Roberts Court decided they were smarter than history.  Not unlike, really, the bigoted and juvenile (in behavior only), Young Republicans. Not in the sense that the majority is as morally bankrupt as the YR (Justice Kavanaugh does give reason to argue the contrary, however; and the majority did not distance itself from his racist and unconstitutional concurrence).  But in the sense of thinking they are smarter than history and what history (and stare decisis) teaches, and are freed from the shackles of societal (and moral) constraint by their positions of power.  The Young Republicans have found out what they said in secret is known in the light (isn't there a line from the gospels about that?), and it is not well recieved there (are they contrite?  Doubtful.  But they do stand condemned.).  Is "originalism" faring any better, even among people who couldn't give you the first principle of the presumed jurisprudence?  Because the proof of any school of jurisprudence, perhaps more so than almost any school of philosophy outside of ethics, is in its results in the world.

And the results of originalism in the world are not in pronouncements from the Supreme Court, but in the actions of Donald Trump. And 2600 events around the country planned for October 18, up from 2100 held in June, indicate "we, the people," the true sovereigns here in whose name even the Supreme Court exists and acts, indicate those actions are not being well received.  And the Roberts Court bears a great deal of responsibility for that.

Which it sounds like someone they might actually listen to, is beginning to notice.