The Right-Wing Plan To Rig SCOTUS

We used to pretend that there was a bipartisan understanding that we would put reasonably independent people on the Supreme Court. Long after that became a obvious lie, nominees would pretend they cared about independence, and assert their neutrality. Remember the smarmy testimony of John Roberts at his confirmation hearing in 2005:

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

Those words are a sour joke now, but at the time most people at least pretended to believe them, and to believe that Roberts meant them. The questioning of Judge Ketanji Brown Jackson and the anticipated vote on her confirmation make it obvious that the Republicans aren’t even pretending now. Senator Ben Sasse, R-Neb., explained why he won’t vote to confirm Judge Jackson.

“Judge Jackson is an extraordinary person with an extraordinary American story,” Sasse said in a statement. “We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation.

“Judge Jackson has impeccable credentials and a deep knowledge of the law, but at every turn this week she not only refused to claim originalism as her judicial philosophy, she refused to claim any judicial philosophy at all. Although she explained originalism and textualism in some detail to the committee, Judge Jackson refused to embrace them or any other precise system of limits on the judicial role,” the lawmaker said.

Sasse is blowing smoke. Judge Jackson has a judicial philosophy, and she explained it in her opening statement.

I have been a judge for nearly a decade now, and I take that responsibility and my duty to be independent very seriously. I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath.

Judge Jackson said she uses both originalism and textualism as helpful tools in making decisions, along with other tools developed over the past 230 years. But that’s not what Republicans want. They want assurances that they will win, and the code words are “originalism” and “textualism”.

Jack Balkin, a long-time law professor at Yale, wrote a short history of originalism and textualism. He explains that in the early 1970s, conservatives were looking for a judicial theory that would enable them to roll back the gains made by individuals and government in the Courts, and for ways to use courts to stall and kill government regulation of corporations and rich people. These two theories were created for the task. They are relentlessly pushed by right-wing rich people through their pet project, the Federalist Society and through support for conservative law professors.

Originalism is the idea that the Constitution should be construed in accordance with the public meaning of the words used at the time it was adopted. As a theory, it relies on the idea that SCOTUS can figure out what that public meaning was.

Textualism is the idea that statutes and the Constitution should be interpreted by reference solely to the words on the page, without regard to anything else. The goals of the legislation, the context, legislative history, none of it is relevant. Textualism relies on the idea that a legislature chooses every word in a law intentionally, that each word has only one meaning for purposes of the law, and that a judge can determine that meaning simply by reading the words maybe with the help of a dictionary.

There’s a germ of wisdom here. Some Constitutional language is capable of exactly one interpretation. Thus, the requirement that a person elected to the House have attained the age of 25 years when elected is capable of only one interpretation, as long as we agree that the election happens on the date of the election, and not the date when the vote is counted and certified under applicable state law.

No one really believes that there is a single fixed meaning to the words legislators use, or that they carefully picked every word, and no one really believes that every word of the Constitution was chosen to express some fixed idea. Let’s try some examples.

The Eighth Amendment prohibits Cruel and Unusual Punishments. SCOTUS recenetly ruled that the death penalty cannot be imposed for rape, but that was allowed for centuries. Does that mean that originalists and textualists would overturn Coker v. Georgia?

The Tenth Amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There were no abortion laws in the US in 1791. Does that mean the matter is reserved to the people? Or to the states? How do you know which? Was there a Public Meaning of the words in the Tenth Amendment that would shed light on this question? Can you tell from the words?

Conservatives said that these two constructs, originalism and textualism, were neutral, and would constrain courts. That’s not what happened. In practice, textualism and originalism produced results in accordance with conservative demands in most cases. This essay lays out the evidence with links.

Lately there’s been concern among religious conservatives as to whether originalism and textualism are enough to get their way in full. Bostock v. Clayton County considered whether The Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of “sex”, applied to gay and transgender people. J. Gorsuch held that it did on textualist grounds. J. Alito dissented on originalist grounds. The uproar that followed among the political Christians revealed the true focus of these two constructs: to use the courts to impose political preferences on a majority that has moved on.

Consider, as Professor Balkin does, the work of Adrian Vermuele, a Harvard professor and Catholic. Vermuele agrees with Balkin’s analysis of the history of originalism and textualism, but goes farther.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.

For the right-wing it isn’t enough that a judge is fully qualified. They will only confirm nominees who will vote for conservative positions regardless of law or precedent or good sense. Republicans are the right-wing party. They want to rig SCOTUS.

49 replies
  1. Bobby Gladd says:

    On “textualism“

    There are roughly 174,000 active words in the English language. (Oxford Dictionary)

    The US Constitution is 7,159 words long.

    Within that, there are 1,135 discrete words. Roughly half of THEM appear only once, and most of THOSE are strictly just grammatically necessary (Recall your old “parts of speech” stuff from grade school and high school?)

    Inconveniently, some words and phrases that do not appear in the constitution: “separation of powers,“ “coequal branches,“ “checks and balances.“

    I could go on. But, you get the idea. “Abortion?” Thanks, Marsha Blackburn.

    We quickly end up at “semantics,“ and what I call “Ouija board jurisprudence.”

      • Bobby Gladd says:

        Thanks, Ed.

        Also not found: “democracy”


        Appearing 16 times: “vote” 14 “votes”
        Appearing 9 times: “election”

        #3 in the rank order, at 306 times, “shall”… unsurprisingly. It is, after all, a document of imperatives.

        • Commander Ogg says:

          Appearing 4 times “Insurrection.”

          Ammendment XIV
          Section 3: No person shall be a Senator or Representative in Congress…under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature…shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

          According to the originalist and textualist a number of Republicans need to be kicked out of Congress. Just saying…

  2. Peterr says:

    For the right-wing it isn’t enough that a judge is fully qualified. They will only confirm nominees who will vote for conservative positions regardless of law or precedent or good sense.

    Ed, I think you misunderstand the meaning of “fully qualified.”

    By definition, the only qualification that matters is the willingness to vote for conservative positions. Period. If you can’t do that, you are clearly unqualified.

  3. Marinela says:

    Court packing is a good way to diminish a rigged SCOTUS.
    I know it is not possible atm but it should be part of the democrats messaging when they get their act together.
    An escalation would just add more judges to the court, so it will diminish the current state anyway.
    And force SCOTUS to recuse when there is potential for conflict.
    A larger court has the benefit would not suffer from a recusal as it does now.
    And add term limits, not life appointments.
    The more judges, the harder would be to rig the votes.

  4. Opiwan says:

    “strong rule in the interest of attaining the common good is entirely legitimate”

    I don’t know what kind of “conservatism” based on social contract ethics and Rawls’ theory of justice Vermuele could possibly be talking about, but no Republican Congressthing would EVER be caught considering such a thoughtcrime right now.

  5. Marinela says:

    OT This is terrifying…
    https [:] //

    Have a bad feeling about this insane war.

  6. d4v1d says:

    I tend to think of ‘originalism’ and ‘textualism’ as teleological, adjacent to the evangelical formulation of ‘inerrancy’, which functionally serves the same purpose: a means whereby a priestly class establishes cognitive boundaries and exerts behavioral control of others. It is doubtful that this priestly class believes a word of it.

    • Peterr says:

      Much if not all of the priestly class of evangelicals absolutely believes it. “God wrote it this way, with no room for discussion, so take my word for what it means and let’s move on.”

      Yes, it exerts behavioral control, but it’s not some construct that the folks at the top don’t buy into. Indeed, their whole mindset requires it — that’s why God put me on top!

      • JVO says:

        I’m confident that Cornelius Adrian Comstock Vermeule of Harvard Law School believes it with all his heart.

        • Peterr says:

          I was borrowing d4v1d’s language, to make it clear that I was referring to the religious use of the phrase.

  7. Vthestate says:

    Change in the structure of the court…..seldom & very hard to do …. IMHO cycling out a few of the Supreme’s to circuit courts one or 2 every session would change it for the better. Life time appointment is dumb.

    • StuartC says:

      Lifetime appointments probably made more sense when most people only lived, to 40-50-60 years old. Now it makes sense to have term limits, just like the constitutional change to limit Presidents to two terms.

  8. madwand says:

    The uproar that followed among the political Christians revealed the true focus of these two constructs: to use the courts to impose political preferences on a majority that has moved on.”


  9. HW3 says:

    Back in the day judges used their humanity to inform their decision making process, but somewhere between Brown v Board of Education and Roe v Wade the reactionaries had enough of that and began the process of funding a production line of apparatchiks for future judicial appointments.

  10. BruceF says:

    Recently read analysis pointing out the SC is giving greater credence to the “Independent State Legislature” position/language. That viewpoint apparently allows conservative Justices to reach decisions that suppress voting and potentially even permit legislatures to overturn the will of voters. Is it possible the justices think this language conveniently allows them to negate the expanded rights and protective language found in the 13th, 14th and 15th Amendments. As originalists the justices should acknowledge that the process for amending our constitution is complex and makes change difficult. As textualists they must acknowledge that when those Amendments were enacted they intentionally included substantially increased Federal governmental powers. Amendments have been put into place to improve our governance–how can the “originalists/textualists” look to revert to language that was superseded?

    I am not a lawyer, just a Poli Sci guy…am I missing something?

      • bmaz says:

        No, there is nothing substantive, but that line of thinking is circulating among legal types. It strikes me as crazy, but there is a lot of crazy in the Coney Barrett court, so don’t rule it out.

      • BruceF says:

        The article was from The Economist–published very recently. Cannot get back to it as I have exceeded free article limits. Thesis was scary and I cannot help but wonder how SC can negate strong protections laid out in the post Civil War Amendments.

        • civil says:

          If I’ve correctly guessed the article, you can go back to the Internet Archive’s copy as many times as you want:

  11. Makeitso says:

    Using originalism, for example, means that women have but one right under the US CON: the right to vote, as they were CLEARLY not considered people at the time. If they were people, they would not need an amendment to vote. In fact, if one knows history at all one quickly understands that the US CON and Declaration were aimed at, written for, and supported by white men; especially white landed men.

    Republicans are okay if the US CON reverted back to its original white men only basis.

    • HW3 says:

      My Dad used to advocate for that in the 70s. Well, not ‘white’, not out loud, but real estate owners only, he figured. Just recently, where I live, the main point of the opponent to one of our new county commissioners was that she was a renter.

  12. BobCon says:

    One of the fundamental problem with originalism is that there is no evidence the Founders supported that concept and lots of evidence they didn’t.

    They came from a long tradition of common law which included a healthy dose of flexibility and interpretation, and they explicitly maintained it as a part of the legal system.

    The contemporary accounts of the Constitution make it clear they were intentionally leaving large parts of it up for interpretation, and the laws they enacted under the new Constitution were not meant to be as narrowly interpreted as modern day textualists do (when it suits them, of course).

    Modern day right wing theory is idiotic at its core, but to a large extent that’s intentional — Scalia wanted dumb bells as adherents, and he got them.

  13. P J Evans says:

    Originalism is an impossibility, because this isn’t 1787. Words change meanings over time, as the world that uses them changes. They didn’t foresee aircraft, TVs, smartphones, or computers, but they did make it possible to change the Constitution.

    • Savage Librarian says:

      Take the word girl, for instance. With the Republican urge to dominate and suppress time and change, will they next declare that all children should be called girls?

      “Hey, Girl, The History Of The Word ‘Girl’ Is Actually Crazy”| HuffPost, Maddie Crum, 8/26/16

      “The precise origin of “girl” is unknown, but, McConnell-Ginet said, the word started cropping up in English texts in the 13th century, used to refer to a young person, but not necessarily a female child. “Gay girls” referred to young women, while “knave girls” referred to young men, until around the 16th century, when “girl” evolved to mean young women in particular.”

      “This is pretty interesting,” McConnell-Ginet said. “It is much more common for words designating either sex to become specialized for application to males, as in the case of ‘man,’ which from meaning ‘human’ has come to mean in most uses ‘male human.’”

  14. jaango1 says:

    One of many joys for being a political writer for these past many years, and thusly, I have been in the cat bird seat to recognize and ‘preach’ for the advocacy that is today’s Progressive Alliance, and which incorporates the “conservative wreckage” that will occur given the pending demographics to arrive over next ten to twenty years.
    And to make it personal since this is a blog environment, a few of my salient critics, I have been called an “ethno-nationalist” and which they are correct as to this label. And yes, as Chicano, I qualify. And as a “nationalist” I too qualify for this label. And further, I too advocate for the idea that a National Debt Surtax can and should be imposed, given that when Clinton left the presidency, our national debt consisted of a remaining national debt of approximately $6 trillion. And from this historical standpoint, the Progressive Alliance will commence its many political successes attendant to our future’s vigil for a Brown Democracy.

    As to my cat bird seat, it’s easy to forget that historicans convenient forget that in their political diatribes, the Yaquis and Apaches, under the guise of Pancho Villa and the many liked-minded, risked their economic well-beings for delivering “democracy” into our next door ‘nationalist’ neighbor, that being the Republic of Mexico. Today, our Progressive Alliance will move ‘mountains’ to ‘improve’ the catalogue of problems facing Mexico, writ large. But that a more salient future for the integration and assimilation of both societies.

    Today’s readily realized Progressive Alliance, is comparable to 46% of the Democratic Party. And as such, the compliant Chicanos are experiencing the behavior that approximately 900,000 on an annual basis, are turning 18 years of age, and registering and voting, and course, the Census Bureau is not tracking the behavior, and which is thoroughly protected by the Republican and Democratic lawmakers. However, in the likely next ten years, the Progressive Alliance will become an approximate 52% of the Democratic Party.

    Furthermore, Congress will pass legislation that addresses Roe V. Wade, in the following manner: “Governments–federal, state, county, and municipal– are prohibited from interfering in a Woman’s Reproductive Rights.” Therefore, the President will announce his/her clarion call for the “resignation” of members of the SCOTUS, republicans and democrats alike.

  15. Ed Walker says:

    Here’s a good question: where in the Constitution does it say SCOTUS has the right to strike down a law enacted by Congress? Was that in the public meaning of anything in the Constitution? Or was it created by John Marshall in Madison v. Marbury using a completely different theory of law? Should this bunch of despots reverse Madison v. Marbury?

    Here’s the Wiki description of Marshall’s reasoning.

    As you can see, it’s like watching a magician conjure up a bouquet from under a piece of cloth.

    Also, it’s not convincing. The President and the Legislators are also required to uphold the Constitution. Why does any of them get to consider itself the final arbiter? And why is striking down a law the proper outcome? Are there no other remedies? Shouldn’t the law be sent to the other branches for further consideration? Or something else?

    • bmaz says:

      Do you disagree with Marbury v. Madison? Shouldn’t the trained Supreme Court have the final say instead of a bunch of nut job state legislators in Florida? That this is being discussed still is absolutely stunning. And, as to “separation of powers”, no the words are not in there, but the entire document is fashioned on that principle…co-equal branches.

  16. The Old Redneck says:

    Textualism doesn’t make sense either. Because the First Amendment says “Congress shall make no law . . .,” then textualism would have prevented it from ever applying to laws enacted by the states. And if you read it literally, you couldn’t even have time, place, and manner restrictions.
    The reality is that these are just buzzwords people use to justify the outcomes they want. It has nothing to do with intellectual rigor or all that other stuff we hear so much bloviating about.

  17. bawiggans says:

    Taking effective political control of the federal courts, and most especially the Supreme Court, bolts the final module onto the American conservative project’s political machine. That machine, fully assembled now, is evolving and adapting itself to efficiently deconstruct American society and remake it. The machine is designed to remove, dismantle and discredit all sorts of laws, norms and customs that can be identified, context removed and made the targets of their rage for the many who are susceptible to the appeal of grievance. These grievances are sanctified by media hucksters as righteous expressions of the American birthright aspiration to be free men. Their satisfaction is always posited as existential for the republic. The stripping away of accreted constraints on the dominant culture’s freedom of action – “unenumerated” rights is clearly their next target – is a purification ritual that purports to offer satisfaction.

    Purification to what? It doesn’t really matter. It is the ritual that is important to the participants. The Republican Party has dispensed with even the pretense of offering a platform specifying what they are for. Their appeal is simply the replacement of what exists with some brave new world of a better yesterday. Yet, as the societal chaos and destruction they are stoking proceeds, the American conservative project is building something quite specific that they never talk about in public and it looks like a fascist state to me.

  18. DAT says:

    Talk of “term limits” makes me anxious. In state legislatures where it’s been instituted the effect has been to strip institutional memory out of the legislators and leave it with the lobbyists.

    I feel it’s pertinent to recall that presidential term limits came from Republicans who were tired of FDR winning every election. Why cannot the citizens be trusted to choose whom ever they wish? Speaking for myself, any idea Republicans are for mandates the strictest of strict scrutiny.

    None of this applies directly to judicial term limits, but still, unintended consequences.

  19. James Sterling says:

    I recall an old book by Philip Wheelwright, who taught philosophy at Indiana University, Bloomington. The book, entitled The Burning Fountain, discussed the ways language functions. “Steno-language,” he said, delineates very specifically, reducing meaning as tightly as possible. Metaphor, on the other hand, allows polyvalent meanings, functioning to evoke rather than to describe in severely limited ways. Originalists, textualists, tend to favor only the one, reductive, function, while ignoring the power of language to evoke new meaning. At least that is how I recall Wheelwright’s position.

  20. DrDoom says:

    IANAL and don’t play one on TV either. But I know a little about baseball. Was John Roberts actually being honest? Calling balls and strikes has a huge impact on the game, sufficiently so that the outcome can be rigged without touching a bat, ball, or glove. Furthermore, it can be done in a manner that is challenging to detect and more challenging to prove. From my layman’s seat, that is John Roberts’ historical legacy.

    • Epicurus says:

      As with many others I imagine, Justice Sotomayor and I had versions of the same Roberts observation. Different umpires have different strike zones. Nine justices = nine different strike zones. (MLB is trying to computerize the process to take away that issue.) As importantly, the poorer umpires have strike zones that change from game to game. The unasked question of Roberts was “Would you please describe your strike zone and is it different for conservative and progressive case originations, i.e. essentially, does it change by batter, pitcher, and/or by team?”. The same question holds for any subsequent justice who embraced Roberts’ balls and strikes observation.

      Said differently, Roberts’ strike zone was a metaphor for his way of describing his application of textualism and originalism.

      • DrDoom says:

        I agree with the need to explore your hypothetical questions. Now, nearly a generation later, would you care to speculate on why those questions were not asked? Strike zone issues were well known at the time, but I recall all contemporary discussion as deeming the issue adequately resolved. I screamed in impotent rage at the time.

        • Epicurus says:

          Speculation is foolish on my part. But I believe greatly in Daniel Kahneman’s description of most situations: WYSIATI – what you see is all there is.

          Roberts was approved out of the Judiciary Committee 13-5. all ten R’s and three D’s. The D’s were Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin. Leahy from Vt, and Kohl and Feingold, both from Wisconsin, voted with the R’s. The confirmation was 78-22. All nays were D’s. My speculation is the nay voting D’s thought Roberts didn’t answer adequately or resolve strike zone questions and the yea voting D’s believed him and/or simply deferred to the President. I think Feingold’s yea vote was the real head scratcher given Roberts’ poor answers or deflections to Feingold’s questions and Feingold’s political/judicial stances. The R’s were in the tank for whomever Bush’s handlers would have nominated. They were already on the road to perdition so everything for them was resolved.

        • bmaz says:

          If you are sitting on SJC how do you not vote for Roberts? Based on what? He was not my choice but he was absolutely qualified.

        • Epicurus says:

          I would imagine/speculate for the same reasons current members of the SJC will vote against Judge Jackson.

  21. Nord Dakota says:

    When Heller was decided (2A for DC) I stumbled on an article about an amicus brief which involved grammatical analysis of the Second Amendment in the context of language as it was used at the time the Constitution was written. It was eye-opening, because those “originalists” interpret commas and words as we understand the commas and words to mean now rather than how they would have been understood at the time.

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