Historians' work played a huge role in a recent decision affecting Native American children. But the dissent by Clarence Thomas showed an appalling willingness to cherry-pick from the past that undermines originalism's own claims to legitimacy.
Legal historians Saul Cornell, Jennifer Tucker and others are in high demand as a legal consultant after the Bruen decision elevated the historical meaning of gun laws to importance in the judicial process.
The approach to "original intent" laid out in recent gun control rulings imagines the founders as capable only of the most cramped and limited understanding of the function of law in a society, argue a legal scholar and veteran court reporter.
"Originalist ideology glorifies an era of blatant oppression along racial, gender, and class lines, transforming that era’s lowest shortcomings into our highest standards."
Textualism as a theory of judicial interpretation arose as a semantic game among academics, but has been put to brutal use by the Federalist Society to undermine the democracy that most 21st century Americans enjoy.
Abolitionists and the drafters of the Reconstruction Amendments understood that the legitimacy of broader claims to rights and citizenship depended on making a claim on the purposes set forth for the Constitution. Ketanji Brown Jackson's recent voting rights dissent suggests she hopes to revive that tradition.
The 16th President looked to the constitutional crises of his time and asked whether the document was created to serve the people or the other way around. Today he might ask the same of the Supreme Court.
The new Associate Justice pushed back against the idea that the writers of the 14th Amendment intended for it to ensure "color-blind" treatment of voters rather than an affirmative defense of racially inclusive political participation.
A legal observer suggests the influential judge's reputation might have benefitted from judicial term limits, as his penchant for judicial restraint took a hard turn toward activism in decisions on gun control and public pronouncements about confederate monuments.
The problem with the historical arguments in this term's SCOTUS decisions is that the court isn't "using" history but "choosing" it—deciding whether or not historical examples map onto present beliefs about the legitimacy of rights or regulations.
William Baude of the University of Chicago argues that if historical arguments have been used selectively in recent cases, it opens the door for dissenting justices to propose more compelling narratives about the constitutional basis of rights.
"Conservatives’ invocations of history often mixed wishful thinking about the past with bad faith in interpreting it. And it was always done with the present-minded purpose of maintaining elite white male rule, especially on matters of race."
It's preposterous to argue that the Founders, men of the Enlightenment generation, would have intended for the constitution they drafted to be immutable and unchanging.
"This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results."
"The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess."
"Ultimately, the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history."
James Madison moved away from a strict constructionist position based on public necessity and acceptance of legislation based in implied powers. Whatever one can say about the originalist legal theory behind the leaked Dobbs opinion, it's not Madisonian.
Justice Alito wrote in Dobbs that Roe v. Wade was “egregiously wrong from the start.” But that tart conclusion more aptly applies to the draft verdict of the good justice.
"If the justices professing to believe in originalism are sincere about their method, this case offers the rare opportunity to prove that originalism is not always a prescription for results-oriented judging that follows a conservative political agenda."
