Originalism is a scam. Justice Thomas just proved it.

[dajoki]

Originalism is a scam. Justice Thomas just proved it.
Tell me again how loyal you are to the text of the Constitution.
https://thinkprogress.org/justice-thomas-biggest-con-1a2dfc282daf/

The greatest restraint on judges is that they are bound by a written text — or, at least, that they are supposed to be.
Members of Congress gain their legitimacy from the will of the people, so they have broad ranging authority to enact laws that, in their opinion, will serve those people. Judges, by contrast, have no democratic legitimacy and far less discretion. Their sole task, at least in theory, is to apply written law to individual cases.

Which is why Justice Clarence Thomas’ opinion for the Supreme Court in Franchise Tax Board v. Hyatt is troubling. Hyatt does not simply overrule a longstanding precedent, it does so while admitting that nothing in the text of the Constitution supports such an outcome. Loyalty to constitutional text and loyalty to written precedents are the twin pillars that stabilize our system of law. The Supreme Court just abandoned both of them.

The rule Thomas announces in Hyatt, by his own admission, is “not spelled out in the Constitution.” It’s also not spelled out in the Supreme Court’s precedents. Much to the contrary, Hyatt explicitly overrules a 40-year-old decision. The decision was 5-4, along familiar partisan lines.

The specific legal question at issue in Hyatt isn’t especially exciting — “whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State.” Before Monday’s decision in Hyatt, the answer to this question was “yes.” Now, it is “no.”

But the implications of Hyatt stretch far beyond the case’s direct holding.

Who needs the Constitution when you have five votes?

Thomas often claims that the only legitimate way to read the Constitution is to examine its text, and determine what its specific words would have meant at the time of their framing. He routinely lectures his colleagues that their opinions should be “more faithful to the original understanding” of our founding document.

This insistence that “originalism” is the only legitimate method of constitutional interpretation isn’t just some rhetorical tactic unique to Thomas. It’s practically a matter of conservative identity. Leaders of the Federalist Society, the organization that President Donald Trump relies upon to select judicial nominees, routinely congratulate themselves for the rise of conservative originalism.

And yet, in Hyatt, we have Thomas embracing a doctrine that can be found nowhere in the Constitution’s text.

<<snip>>

[katmondoo]

1. Thomas has always been a piece of sh#t

[Bradshaw3]

2. Add it to the list

States rights, freedom of choice, national debt, law and order, national security, etc. All of these "conservative values" tossed aside in service of the corporatocracy and of white privilege.

[cilla4progress]

3. Of course it is.

Maybe it's my age - 64 - but every year it becomes clearer to me the lies, hypocrisy, and bullshit. On steroids with current administration. And xtianty is a big charade designed to keep power in the hands of those in charge.

I remember first realizing that no one in charge knows what the fuck they are doing. That was sure a realization. Now I see through it all. They know all right, and it's completely self-serving!

I exempt from this the vast majority of Dem leadership... For the love of gawd I don't know why MT Gov. Bullock thinks he should run for Prez, however.

[muntrv]

4. If we went by original intent,

Clarence Thomas would be a slave.

[StarfishSaver]

5. Thread Winner

[underpants]

6. Ouch!

[lunatica]

9. Lynched for having a white wife too.

[dalton99a]

16. +1

[Yo_Mama_Been_Loggin]

11. Or 3/5 of a person at least.

[Ilsa]

15. Yep. The actual decision should be 4 3/5 to 4.

Not that it changes the outcome.

[JHB]

7. Yup. It has always been an elaborate excuse, posing as defending a principle...

...but ignoring that "principle" whenever an opportunity to push a conservative agenda arises.

[Cicada]

8. The brilliant conservative Judge Richard Posner skewered originalism

Richard Posner, who served on the seventh circuit US Court of appeals, is a conservative lion and one of the smartest and most interesting people on planet earth. He wrote dozens of books on wide ranging topics in his spare time. He says almost all legal opinions are bull shit. He says judges decide what they want the opinion to be, usually based on what they think is best for the world, and then make up legal arguments which reach the desired conclusion. He said Scalia said he was an originalist because originalism usually results in conservative decisions he favored. He said Scalia used originalism as an excuse to reach conservative results he wanted for different reasons. But he says all judges do that sort of scam reasoning. I once overheard a lawyer talking with another lawyer about how he decided cases when he was sometimes selected as an arbiter chosen to decide a dispute outside court. He explained that he always decided “on the equities” meaning he decided to do what was best no matter what the law was. Posner says all judges do that. They just pretend they don’t.

[Hortensis]

10. Our constitution is designed to protect the rights

of the individual against authority, very much including its many current, frighteningly fascistic manifestations. And it has been overall interpreted so for over 200 years now. You better believe originalism is a scam to destroy its service to the people, and other, currently accessible techniques of fascist politics are being employed virtually everywhere you find Republicans in power these days.

Fascist dictator Mussolini explained fascism clearly enough for anyone to understand: "Liberalism is the individual. Fascism is the state."

This is not the first grave peril our democracy has faced, of course.

...we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth." ~ President Lincoln

[stopdiggin]

13. with some balancing involved

It's a balancing act (as are so many things) and intelligent people have always been aware of that. That's why an intelligent and "informed" electorate is so integral. The rights of the individual may be (and probably at time should be) also restrained. The "state" sometimes has right on its side too. Examples: pollution?, vaccinations? .. education?

[Hortensis]

14. Of course. :) Our founding fathers created a structure within

which people would (ideally) live as free as possible while enjoying their rights to life, liberty and pursuit of happiness. The structure with necessary constraints is absolutely critical to living free in the real, actual world. Theory's just words on paper.

Under fascism, the balance of duty tends to be not on the state to serve the people but on the people to serve the needs of the state, and through fulfilling that duty comes benefit to the people.

That's why WI Gov Rick Scott thought it was only right to re-orient state institutions of higher learning to focus on training future labor to fit the needs of industry, and to cancel most of the liberal arts programs. That liberal self realization nonsense is incompatible with fascism.

[dajoki]

17. scott is from FL, walker is from WI n/t

[Hortensis]

18. I did it again?! Thanks. I despise them both and keep

mixing up the names. I never read Britt's 14 characteristics of fascist nations applied to Rick Scott, but Scott Walker's actions begged the comparison and fulfilled it compellingly.

Umberto Eco earlier also listed 14, but somewhat different. Trump's call for "patriotic farmers" to heroically shoulder their trade war sacrifices fit right in with both, though. A phrase borrowed from Russia, apparently. Guessing China under Mao must have had a version too, 34 million patriots starved to serve the Great Leap, though what made me think of that I can't imagine.

[dajoki]

19. Its easy to mix those two up...

not to mention all the others.

[Mosby]

12. Everyone should read this

This article evaluates the jurisprudence that the Court's conservative wing currently offers (both in majority and in dissent) against seven indices of judicial activism: countermajoritarian activism; nonoriginalist activism; precedential activism; jurisdictional activism; judicial creativity; remedial activism; and partisan activism. Part I addresses the first six indices. I discuss whether selected decisions are fairly susceptible to the activist label under each criterion and, if so, whether there are reasons that suggest that the cases are nevertheless defensible, even to those who generally oppose activist decisions. Part II presents an overall appraisal of whether the conservatives can be fairly labeled as activist and, if so, what that conclusion might say about the meaning of judicial activism and the enterprise of judicial decisionmaking generally. Additionally, because measuring a court's activism may require one to ask "activist compared to what?", I will evaluate the judicial activism that has achieved conservative results against the activism that has achieved liberal outcomes. Part III discusses the seventh sin-partisan activism. I separate this criterion from the others because it is potentially the most damning. While some level of activism may necessarily inhere in the process of constitutional interpretation, using judicial power to accomplish purely partisan ends does not. Finally, I conclude that the conservatives have indeed been activist with respect to five of the first six indices (remedial activism being the exception), but that in many instances, this activism is defensible, and that their overall record is neither unprecedented nor excessive in comparison to historical norms. Their fault, if any, is in their disingenuousness. They, or more often their defenders, claim that theirs is a jurisprudence more principled and more restrained than that of their liberal counterparts when in fact it is nothing more than a jurisprudence designed to effectuate particular results. I reach no conclusion, however, on the seventh sin. Partisan activism is a serious charge and the cases neither establish nor refute that the conservatives have engaged in it.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=330266

[Hortensis]

20. Compelling title. Thanks.

I've downloaded it to the desktop and will be checking it out.

Fwiw, in extremely less erudite terms, I do see both liberal and TODAY'S conservative justices' judicial activism as unquestionably widely divergent in two very basic ways:

Liberal justices have always tended to overturn legislative decisions when they interfere with
representative government and/or deny the protections of the Constitution to some person or group. Activism, but based on the "living constitution" philosophy of applying the principles of our democracy to a changing world. Most common, of course, has been overturning the constant churning out of laws meant to oppress minorities and maintain inequalities of various sorts against various groups. Also when separation of powers and states rights have been violated, usually in pursuit of the other.

TODAY'S conservative activism has become political activism brought to the court to overset principles of democracy, including electoral power and equality. Brett Kavanaugh is superbly emblematic of this. "Originalism" is just one excuse to try to justify and get away with what are end runs around an oppositional electorate in order to cement hostile principles and processes into national law. Intensely corrupted and corrupting and intended to be so.