When the Supreme Court Claimed to be Originalist, It Lied

By GENE NICHOL

Last summer, when the US Supreme Court announced precedent-shattering decisions in the abortion and gun rights cases, it pledged fealty to “originalism”. Clarence Thomas proclaimed that legitimate constitutional interpretation must be “informed by history” and that judicial review is acceptable only when “justified by our historical traditions.” Samuel Alito threw Roe out because the 14th Amendment must be limited by “historical inquiries into our deeply rooted traditions.” A constitutional ruling not supported by the text’s “original meaning,” the theory goes, is no legal ruling at all.

Lots of folks (like me) assumed that the new right-wing court’s commitment to originalism would be short-lived. That’s because the theory is politically inconvenient if a judge is on a fevered mission to invalidate affirmative action under the 14th amendment. It’s inconvenient because the Reconstruction Congress that proposed the equal protection clause repeatedly deployed race-based affirmative action to help secure the full citizenship of African-Americans. Their “original understanding” endorsed racial remedies, it didn’t prohibit them. Odd that.

In the Oct. 31 argument in the UNC case, after nearly three-hours of discussion, Justice Kagan poked her politically-driven Republican colleagues while questioning the Solicitor General:

“One notable thing about the argument here is that there has been very little discussion of what originalism suggests about the question. So I want to ask, what would a committed originalist have to say about the kind of race consciousness at issue here?”

Solicitor General Elizabeth Prelogar responded candidly:

“An originalist would think that this (UNC program) is clearly consistent with the original understanding of the 14th amendment. At the time it was passed, there were laws that took race into account in trying to achieve the central tenet of the amendment, to bring African-American citizens to a point of equality in our society.”

Suffice to say, that didn’t slow down the likes of Thomas and Alito. Their words are uttered, and their constitutional theories are implemented, only for the day. Originalism invalidates 50 years of abortion rights and it casts aside a century of gun regulation – because those reversals are center-pieces of the Republican political agenda.

But originalism has no purchase whatsoever in a constitutional review of affirmative action. Republicans hate affirmative action. So right wing justices are allowed to alter the rules. Originalism is intended only to block the constitutional claims of the libs. Folks like Thomas and Alito aren’t judges after all. They’re straight-out political aficionados. We shouldn’t expect any more honesty or consistency or integrity from them than we would from Donald Trump or Ted Crews or Marjorie Taylor Greene. They’re all in the same line of work. They drink, deeply, from the same vile trough.

And actually it’s even worse. Justice Alito has recently explained that we’re all required to accept his lessons like good serfs:

“Everybody in this country is free to disagree with our decisions. But to say the court is exhibiting lack of integrity is something quite different. That goes to character. Someone crosses an important line when they say the Court is acting in a way that is illegitimate. That is not just ordinary criticism. That is something very different.”

So judges can lie from the bench, and lie from the Senate Judiciary Committee witness stand, and we’re required to grin, bow, say “yes, your honor,” and take it.

No wonder Justice Somia Sotomayor asked famously in Dobbs: “Will this institution survive the stench that this creates in the public perception that the Constitution and its readings are just political acts? I don’t see how it’s possible.”

Me neither.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, December 1, 2022

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