In a post last Saturday in Atlantic Magazine, columnist Adam Serwer described a Supreme Court Majority less interested in representing accurately our nation’s history and upholding precedent than attributing to the founders opinions and prejudices more likely to be found on Faux News than in Colonial America.
In contrast to the concept of a “living Constitution” which is so detested by the right, but more in line with James Madison’s mentor Thomas Jefferson –
“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
– Justices Alito and Thomas especially seek to foist upon us a vision of the future that is not rooted but anchored in the past, a vision not of a nation boldly striding towards a more perfect Union, but slouching in retreat to the decidedly unperfected past of the eighteenth century, a vision Serwer calls “undead constitutionalism”:
“Setting aside the record of insincerity from Alito himself and the other conservative justices, the reason not to trust his disclaimer is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.”
And he bemoans the supermajority’s unassailability and unaccountability by and to the American people…
“The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.”
Sewer goes on to point out that the super-majority’s neutering of President Biden’s Vaccine Mandate, premised on the fact that OSHA had never before imposed such strict standards on the workplace (more Zombie-ism), was, of course falsely premised, as never before had an administration been forced to contend with a pandemic that had killed one million Americans.
And that the court’s recent decision vacating New York’s strictures on possession of concealed weapons, bolstered by Thomas’ eminently errant proclamation that that state’s sensible law was not “consistent with this nation’s historical tradition of firearm regulation”, is patent bullshit, that the US rather has a dense history, from Dodge City to the present, of regulating the availability of weapons.
But Sewer saves his most potent rhetorical salvos for his closing paragraphs, which describe, as well as anything I’ve seen, the present damnable situation we find ourselves in…
“…the purpose of this undead constitutionalism is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.
The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its current majority. And while the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions. They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing.“
As much as I like Serwers “Night of the living Dead constitutionalism” analogy I might personally prefer a “Weekend at Bernie’s” version in which Thomas and Alito schlep around the decidedly dead body of a founder so that they can be invited to all the cool Heritage Foundation and Faux News parties.
After all, those bogus interpretations of the Constitution don’t animate themselves.
The six extremist “justices” come from Federalist Society recommendations. The federalist society pretends to take a textualist/originalist view of the U.S. Constitution. They claim to be guided by the Federalist Papers. This is a lie since the Federalist Papers advocate, as can be derived from the name, for centralized (Federal) power. The people belonging to this particular cult cherry pick what they with from the Federalist Papers much like x-tians do the bible.
One needs to remember one thing: the federalist papers are NOT the U.S. Constitution. They are the views, opinions in fact, of only THREE people; Hamilton, John Madison, and John Jay. If the opinions of three people are what guides the interpretations of our constitution, we are being short-changed. We are being treated to legal opinions put together by people who A) are too lazy to think for themselves, B) too ignorant to realize time marches on over centuries which changes not only people but interpretations of any and every document, and C) are afraid of progress which is something that ultimately cannot be halted. These are not simplistic statements since they are demonstrated in every opinion spewed by these six extremists. They do not interpret the U.S. Constitution. They parrot the Federalist Society’s take on the Federalist Papers–interpretations BTW that are not even close to being on target.
We make much of the lies uttered by Gorsuch and Kavanaugh but the other four extremists vowed to be faithful to the U.S. Constitution, to be guided by its principles. They are not doing this therefore they too lied.
I’d say we need some Democrats to call for the removal of the conservative justices who espouse this “undead Constitutionalism” theory but don’t themselves fall in line with the model. You know, the Black Justice Thomas, the female Justice Coney Bennett, and the Catholic Justices Roberts, Alito and Kavanaugh (both Coney Bennett and Thomas are also Catholics) because, when the Constitution was written, all of those groups faced prohibitions and restrictions based on racial, gender and religious reasons. Kind of ironically, the first Catholic to join the Supreme Court, Roger Taney, personally abhorred slavery and freed his own family’s slaves–even providing pensions for the older slaves who couldn’t work–but he also didn’t believe Constitutional protections didn’t extend to Free Blacks. Incidentally, in the Dred Scott decision, the Court’s majority actually used a variation of Thomas’s current argument to determine that NO Black person could be an actual citizen of the United States–the decision even deliberately ignored the fact that 5 states had extended the right to vote to Free Blacks by 1788. And so, if some amendments hadn’t been added to the Constitution (and, per some detractors, extorted by the Feds on certain states as a prerequisite to rejoining the Union), Clarence Thomas wouldn’t even be on the Supreme Court BASED ON A DECISION THAT USED THE IDEA OF CONSTITUTIONAL ORIGINALISM.
Thomas has benefited from affirmative action and he’s railed against the very concept his entire life (of course, not enough to turn down any of those benefits–from his admission to college and law school, all the way to his appointment to the Supreme Court; even his current marriage is a benefit of a SCOTUS decision that determined race shouldn’t be a prohibitive factor when getting married.)
And, Thomas might want to remember that his current marriage to Eva Braun–I mean, Ginni–is legal ONLY because the Loving decision determined marriage to be a “fundamental Constitutional right” even though the Constitution actually doesn’t mention marriage at any point. Let’s just hope that Thomas gets hoisted on his own petard by any effort to overturn Obergefell. The Loving decision declared marriage to be one of the “basic civil rights of man” (even if most courts would later ignore this notion in efforts to bring about same-sex marriage equality–though I’m not sure this was ever raised in any of those cases; pre-Loving, most courts upheld the anti-miscegenation laws based on what “God had dictated” and how “He separated the races on different continents,” arguments which were, and still are, raised in LGBTQ+ cases to this day). Of course, thanks to his own big mouth, Thomas should be forced to recuse himself from ANY case that would attempt to overturn Obergefell, Lawrence or Griswold.
I don’t know if the Constitution allows Congress to set rules for the Supreme Court’s behavior but I think requiring SCOTUS justices to recuse themselves from cases in which they’ve already effectively made up their minds should be one of the very few cases to get full bipartisan action by Congress. Conservatives and progressives have railed over the years that justices should recuse themselves for a perceived bias (mainly a perception on the part of outsiders rather than any actual display of bias) and they bemoan loudly (more so by certain parties than others) when a justice does not do so (and it’s interesting that more of the liberal/progressive side have recused themselves from cases than the conservative side–even though the conservative side have been more likely to expose their bias, largely by publicly speaking to like-minded groups).
Trump won with fraud (remember Stormy?) and the help of Russia, which he gleefully accepted. He then came into office and began his treasonous crime spree. Immediately. Putin’s foreign policy and the Klan’s domestic policy, with a tax cut for the donors thrown in for good measure. And all these worthless traitors facilitated and aided his treason. Good God, he killed more Americans with his handling of COVID than Putin ever could do with the pathetic Russian army. Prosecution and nullification is what is needed. Any contract attained by fraud is generally voided. Trump admitted to fraud right before the first election and had to pay dearly for that. Is not the Constitution and our freedoms at least as important as the rights of correspondent students?