SCOTUS, Supreme Court Of The United States is an acronym everyone knows. With six GOP President appointed Justices, FIVE of which were appointed by Presidents who LOST the popular vote the term SCROTUS as in Supreme Court (Republican) Of The United States entered the lexicon. I fear we might get to the point where the correct acronym will be SCROTUM: Supreme (Republican) Court Of Trump’s Ugly ‘Murica. Or that last word could be MAGA. Take your pick but both suck.
Chief Justice John Roberts, appointed by Bush 43 took office with a mandate from The Federalist Society to start returning us to Colonial Times. Alas, they were exceedingly patient for with people such bold goals and chose to act a little at a time in the hopes the public wouldn’t catch on. Despite attempts to shine a spotlight on them and their remaking of the judiciary (and even infecting law schools with acolytes) they’ve done fairly well at avoiding scrutiny, or at least for sustained periods of time that would weaken them.
Every one of the six GOP Justices were groomed for their position by The Federalist Society. Every one. Roberts was carefully picked to be recommended to Bush 43. Roberts himself had delusions of grandeur after an initial nomination to be an Associate Justice turned into one to be Chief Justice. Hoping for a legacy that would have history books portraying him with the elite Chief Justices Roberts did things the way the F**wad Society’s Leonard Leo wanted, mostly gradually but with a bold decision if conditions seemed ripe. Then Trump got to appoint THREE Justices in his first term and control of the process was lost. Roberts’ seems to have abandoned his dreams of history regarding him as one of our best C.J.s so little attempt is being made to hide the intention to roll us back.
The Court has abused the hell out of the so-called shadow docket, even overturning precedent with no explanation. Worse, they’ve taken a number of cases for this new term that give them room to fashion an expansive re-writing of the law. According to this article from The College Fix conservatives who are of the “Originalist” Constitutional School of Thought will see all their dreams come true by the end of June next year when the final rulings/opinions have been issued. At least that’s what Civics Professor Morgan Marietta who cites the addition of Trump appointees Gorsuch, Kavanaugh and Barrett as the catalyst for the upcoming shift. All three generally support ‘originalism’ and two, Kavanaugh and Barret replaced Justices that took a ‘living Constitutionalism’ approach. I think the two terms are self-explanatory but if you’d like a more detailed comparison you can check it out here.
Getting back ‘on point’ as legal types would say Marietta has authored several books on the Constitution and SCOTUS. Prior to being at the University of Tennessee, he served what had to be a brief time (the place hasn’t even graduated it’s first class) as the dean of economics, politics, and history at the University of Austin. Although billed as a liberal arts university it’s turned out to have a significant conservative lean in the professors it’s chosen. Enough so that some initial board members who got the place open resigned. Libertarians seem to think highly of it though, and it shouldn’t surprise you that Marietta is an Originalist when he writes this:
The Supreme Court of the United States will continue to shift back to originalism this new term, a University of Tennessee civics expert told The College Fix.
Professor Morgan Marietta said the Supreme Court is undergoing a “constitutional revolution” as it moves away from the idea of a “living” Constitution toward originalism.
“The originalist shift is revolutionary in the sense of the dramatic change and broad ramifications for public policy, but it is not a new or unprecedented approach to reading our law,” Professor Marietta said via email.
This shift is “but a simple return to original meaning in principle,” he said. He has written several books about the Constitution and the Supreme Court. He previously served as the dean of economics, politics, and history at the University of Austin.
So what we’ve got going on is the culmination of over four decades of serious planning back by a handful of of men who mostly take pains to stay out of the spotlight but have been willing to throw enormous sums of money to remake not just SCOTUS, but the judiciary and even legal education in their own image. ‘Originalism’ is I believe nothing more than a label for something even worse.
I’ve said before that conservatives who promote what they call Originalism actually want to take us back to before our Constitution was written and ratified. What I say they want is a return to Articles of Confederation days when a handful of the most rich/powerful people in each state made up the rules for their states, and also how they’d interact with other states. They reserved what they considered their right to change the rules (for their benefit) whenever they wanted. The whole thing was unwieldy and England in particular sat and watched as we slid towards failure.
It was the Federalists, the real ones (not the ones in the fascist group that’s stolen their name) pushed for and got a Constitutional Convention. The debate was over whether we should have a strong or weak central government. That debate continues to this day. Both sides got some of what they wanted but frankly, to come up with something that could be ratified certain issues were addressed only vaguely. More bluntly put the founder punted, kicked the can down the road. Hell, even people like Adams and Jefferson believed a new convention would be needed in fifty years or so to deal with some of the things that hadn’t been taken care of the first time.
This is a long, wonky issue that would take several articles to explore. I’d like to plainly talk about just a handful of reasons why Originalists are wrong. Full of crap even. First, those (including Justices who’ve cited it) are selective about when it applies. Either it applies ALL the time or, despite their protestations the Constitution has been a living document where law and precedent change as issues, and rights are defined by evolving times. Also, even when they make claims to Original Intent they get it wrong, of fudge the issue.
Take the second amendment. The actual TEXT states ‘A well regulated militia being necessary to the security of a free state; the rights of the people to keep and bear arms shall not be infringed.’ No doubt you’ve heard gun nuts and even (too) many mainstream conservatives only talk about that second part. Yet it’s clear from convention debates, letters and other writings of the founders one of their fears was having a standing army. Militias they figured were the way to go and that meant local militias being maintained. Yes, individual gun ownership was allowed but even then often regulated. And ‘heavy arms’ as in cannons and stocks of black powder were maintained at a single location in town.
Yes, you read that right. Many places had local gun control laws and even then there were some people that were deemed unworthy (if not dangerous) of owning personal firearms! ‘Well Regulated Militia.’ That means organized and while most men could could afford them could own firearms it was in part because they were part of the militia. Being able to use them for hunting was a bonus, if a necessary one back then. Of course, at the time “arms’ were flintlock long guns (actual rifles were hugely expensive) and inaccurate beyond beyond thirty to forty yards. “Repeating rifles” as in rifles that could hold multiple cartridges/shells at a time wouldn’t come along until the latter part of the 1800s. Let’s face it, modern rifles and military assault weapons that now exist would have been unfathomable to the founders.
That leads me to a broader issue. Guns as they existed and were thought and spoken/written of back then are but one of a myriad of things few, if any founders could have conceived. Seeing a person in some machine flying along and under control would have at best astounded them, and likely frightened instead. So would larger flying machines where bundles came out and floated gently to the ground, turning out to be men using parachutes. Or hearing a familiar voice from a box on the table or a handset, as in telephone communications. Or seeing images on a TV screen. Or modern medical imaging equipment and treatments. Many of the time (including no doubt at least some who wrote and ratified the Constitution) would have considered such things the works of the Devil himself. And/or Witchcraft.
So clearly the Constitution and even amendments leaves a lot of room for interpretation as time goes by. The right to privacy is laid out in more than one amendment but the word itself doesn’t appear. So Originalists insist it does not exist! That means the basis of many laws including the right to choose medical care and whether or not to have children being via use of birth control or terminating unwanted (or medically dangerous) pregnancies doesn’t exist. Nor your right to control your personal information. Every time you access a website data miners are scooping up where you went, what you did and/or said and SELLING it. And as far as Originalists are concerned because the word Privacy doesn’t appear you have no Constitutional right to it.
They refer to the amendment process sometimes but that too is a red herring. Intense effort is underway to “undo” the Reconstruction amendments ratified after the Civil War. Even when the self-professed Originalists are confronted with clear language (i.e. birthright citizenship) that runs counter to their agenda all of a sudden they say ‘Well, it says that but that’s not what it means.’ Even though those amendments clearly banned slavery and gave rights to former slaves.
I could go on and on but the plain fact is these asshats only believe in Originalism when it suits their purposes. There is ample evidence well beyond what I’ve noted (the gun issue) that they even ignore what the founders said in debates and their correspondence and other writings! That’s why I subscribe to the Living Constitution theory, which in plain terms means that from early on it was understood that as issues came up the courts would resolve them. And set precedents which shouldn’t be blithely disregarded.
Yet that’s exactly what’s been going on recently with the Roberts’ Court and is about to go on steroids. I also am convinced as I’ve said the Federalist Society GROOMED Justices want to do more than take us back to before Marbury v Madison. They are searching for a way to render the Constitution itself invalid and return us to the Articles of Confederation where a few un-elected rich and powerful white men can make the rules up as they go along. At the very least they want to create a new set of precedents that allow that and are well on their way to accomplishing it.
Republicans cheated and gamed the system to get us to this point. There are rememdies that will cause them to scream bloody murder if Democrats regain power and enact them but we’ve got to do it. Starting with using the very concept of Originalism and using it to expand SCOTUS. To thirteen Justices since there are as many federal circuits. Also expand the number of District and Appellate judges to water down the conservative court packing that’s been happening for four decades now. The Constitution doesn’t so much as hint as, much less specify how many Justices there should be, or other judges.
When conservatives melt down, screaming we’re ignoring the Constitution by adding Justices and judges DEMAND they point out where in the original document a given number is stated. IT’S NOT IN THERE! In fact, the number of Justices has gone up and down during our history! In a law setting thirteen Justices include a clear provision that further change will require a Constitutional Amendment. Which of course would never be ratified but with a fair Court attempts to change the number would be ruled against the clear, textual meaning of the law that established their size! Beat em at their own freaking game.
This is a tough, complicated topic in many ways. However in one it is simple. Back in 2016 with the Court eating away at not just abortion but voting rights too, gutting campaign finance laws, rolling back environmental protects, regulations of finance and so on. I believe Roberts and his Federalist Society Masters have decided it would if given the chance ramp things up. People tried to warn voters but still, just enough couldn’t bring themselves to vote for Hillary Clinton and we got Trump. Worse, through a combination of Constitutional thievery, cheating and hypocrisy Trump got to appoint THREE Justices in that first term! I wouldn’t be kind to anyone complaining now who refused to vote for Hillary for “reasons’s now how their assholiness has worked out for our country and the world.
What we can do is shine the brightest light possible on all this. Dick Durbin, ranking member of the Senate Judiciary Committee needs to step the hell aside from a job he was never fit for and let Sheldon Whitehouse take over. Then we’d have a voice that can lead both in the Senate but help focus a white hot spotlight on what Roberts and his fellow Federalist Society Fascists have been up to and plan to do. It won’t stop the destruction but it can slow it down, given us a chance come 2028 to stop the bleeding, and then go on the offensive.
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The term “liberal arts” does not refer to politics. It is sort of a term of art which reveals what fields of dubect matter will be taught at it. They are different depending on what era is being discussed, but in no way are they restricted to liberal politics. If I may quote Britannica:
liberal arts, college or university curriculum aimed at imparting general knowledge and developing general intellectual capacities in contrast to a professional, vocational, or technical curriculum. In the medieval European university the seven liberal arts were grammar, rhetoric, and logic (the trivium) and geometry, arithmetic, music, and astronomy (the quadrivium). In modern colleges and universities the liberal arts include the study of literature, languages, philosophy, history, mathematics, and science as the basis of a general, or liberal, education. Sometimes the liberal-arts curriculum is described as comprehending study of three main branches of knowledge: the humanities (literature, language, philosophy, the fine arts, and history), the physical and biological sciences and mathematics, and the social sciences.