October 16, 2023
Whither the Court

A rogue, irrational, anti-democratic Republican Party is bad enough; a politicized Supreme Court may be worse.  It remains to be seen whether the Court, now with six conservatives, will move drastically to the right, but there is reason to worry.  

Even before the advent of the supermajority, the Court already had made a number of bad decisions. They include  District of Columbia v. Heller and McDonald v. Chicago on gun control, Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission on political spending, Shelby County v. Holder on discriminatory redistricting, Rucho v. Common Cause on gerrymandering, and Bucklew v. Precythe on the death penalty.  Together they made the nation less safe, less democratic and less civilized.[40]

The Court’s record was not all bad.  It rejected efforts by Trump and his allies to overturn the 2020 election and denied his attempt to prevent the January 6 Committee from obtaining records from his tenure.  However, on the whole, it was moving to the right, a move which now may accelerate.

One of the devices employed to justify conservative decisions is originalism, the notion that the Constitution must be interpreted as it would have been at the time the provision in question was written, or adopted, or ratified.  This does not make sense; the Constitution, in addition to creating a structure, sets out a set of principles; There is a difference between principles and applications or interpretations.  The latter are artifacts of the time, but the former are guides for decision or action in different times and different contexts. Originalism pretends that the creators of the Constitution intended that we be trapped in their time.  In effect it denies the possibility of intellectual and moral progress and even of changed circumstances.

In addition originalism is an invalid theory of interpretation because of its history and because its underlying premise is flawed.  The underlying premise of originalism is that the original understanding of a passage can be found; however, “For the vast majority of constitutional issues that arise, there is not a clear original meaning. With so many people involved in drafting and ratifying any given provision, there cannot be.”[41]

Originalism has a dark history. It underlies the infamous Dred Scott decision. which held that

neither slaves nor free Black people could be citizens. . . .  Dred Scott relied on what later would be called “originalism”. . . .[Chief Justice] Taney picked through founding era documents, laws passed in the early republic, and views of the framers to claim they intended the United States to grant rights only to white people throughout the country.[42]

In the Court’s hands, originalism is a flexible instrument; the Justices are selective as to what precedent to cite.  Heller is an example. The opinion allegedly adopts this principle: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them . . . .” However, rather than finding the intent, the scope, of the Second Amendment in its text, the opinion dismisses part of it as a mere preface and instead finds the alleged original intent in an English statute of 1689.

Heller was extended and originalism employed in New York State Rifle & Pistol Association v. Bruen, which limited gun-licensing laws by the practices allegedly common at the time the Second Amendment was adopted.

A recent development which does nor bode well is the frequent use of the shadow docket, orders issued without briefing or argument.  These began as procedural orders, but have become vehicles for substantive decisions.  

    . . . Since the mid-2010s, there has been a radical shift in how (and how often) the justices use the shadow docket — not just to manage their workload, but to change the law both on the ground and on the books.  From immigration to elections, from abortion to the death penalty, from religious liberty to the power of federal administrative agencies, the Supreme Court has, with increasing frequency, intervened preemptively, if not prematurely, in some of our country’s most fraught political disputes, through decisions that are unseen, unsigned, and almost always  unexplained.[43]

Thus far, the supermajority’s record has been mixed.  On the plus side, the Court upheld a decision that threw out Alabama’s maps for its seven congressional districts, which included only one with a majority of Black voters.[44]  It was a notable ruling for a court which has not been friendly to the Voting Rights Act.  The Court also stayed a lower court’s ruling which struck down a government regulation of ghost guns.[45]  On the negative side, in addition to Bruen, the Court went out of its way to overturn Roe. .

Hovering over the Court is the question of ethics, both in terms of questionable behavior and the absence of rules.

______________

40. My more extended comments on these decision are here: Heller July 6, 2008 and December 19, 2015;   McDonald July 14, 2010; Citizens United February 6, 2010; Shelby County July 1, 2013; McCutcheon May 13, 2014; Rucho October 8, 2019; Bucklew April 13, 2019.
41. Erwin Chemerinsky, Worse than Nothing: The Dangerous Fallacy of Originalism, Yale University Press (2022), p. 51.
42. Michael Waldman, The Supermajority: How the Supreme Court Divided America, Simon & Schuster (2023) p. 22
43. Stephen Vladeck, The Shadow Docket Basic Books (2023), pp. 12-13
44. https://www.washingtonpost.com/politics/2023/06/08/supreme-court-alabama- redistricting-voting-rights/
45. https://www.huffpost.com/entry/supreme-court-temporarily-allows-ghost-gun- regulations_n_64d271a0e4b0677e5044cfc1