SCOTUS

[MDlaxfan76]

A Supreme Court Justice Gave Us Alarming New Evidence That He’s Living in MAGA World

The Supreme Court heard arguments Thursday in Trump v. United States, a challenge to special counsel Jack Smith’s indictment of Donald Trump for election subversion related to Jan. 6. The former president argues that he has absolute “presidential immunity” for the “official acts” he undertook while attempting to overturn the election, rendering the prosecution against him largely unconstitutional. Despite the total lack of any known constitutional basis for this theory, the Supreme Court’s conservatives received it favorably, suggesting that they will further delay and undermine Trump’s eventual federal trial.

Dahlia Lithwick: Justice Alito trotted out this theme that was kind of bone-chilling: He said “we all want” a “stable democratic society,” and nothing could be worse for democracy than holding a president to account, because that will “lead us into a cycle that destabilizes the functioning of our country as a democracy.” As if democracy requires giving immunity to criminal presidents because otherwise they won’t leave office. This was when I went through the looking glass—it literally felt like “don’t make me hit you again” democracy.

Mark Joseph Stern: This was a great example of Alito being fully brain-poisoned by Fox News. This is been happening for years; he used to ask famously great questions, but these days it’s just culture war grievances and stuff that falls apart upon even a little bit of scrutiny. He’s losing his edge. And that was clear in this bizarro question saying that actually, a functioning constitutional democracy requires us to let presidents off the hook when they engage in a criminal conspiracy to steal elections.

But it was also clear during his next round of questions with Michael Dreeben, who represented Jack Smith. Alito had Dreeben walk through the layers that protect a president from a frivolous or vindictive prosecution. Then he dismissed each one out of hand. So Dreeben said: First, you need a prosecutor who’s willing to bring charges; then you need a grand jury to indict; then there’s a criminal proceeding in open court where a jury of his peers decides whether he’s been proved guilty. And Alito just laughs it off as though it’s a big joke. Because we all know Justice Department attorneys are hacks who’ll do whatever they want, right? And a grand jury will indict a ham sandwich—nobody believes a grand jury will do anything worthwhile. And then, oh, sure a jury of his peers, like that’s going to do anything.

Mark Joseph Stern: This was a great example of Alito being fully brain-poisoned by Fox News. This is been happening for years; he used to ask famously great questions, but these days it’s just culture war grievances and stuff that falls apart upon even a little bit of scrutiny. He’s losing his edge. And that was clear in this bizarro question saying that actually, a functioning constitutional democracy requires us to let presidents off the hook when they engage in a criminal conspiracy to steal elections.

But it was also clear during his next round of questions with Michael Dreeben, who represented Jack Smith. Alito had Dreeben walk through the layers that protect a president from a frivolous or vindictive prosecution. Then he dismissed each one out of hand. So Dreeben said: First, you need a prosecutor who’s willing to bring charges; then you need a grand jury to indict; then there’s a criminal proceeding in open court where a jury of his peers decides whether he’s been proved guilty. And Alito just laughs it off as though it’s a big joke. Because we all know Justice Department attorneys are hacks who’ll do whatever they want, right? And a grand jury will indict a ham sandwich—nobody believes a grand jury will do anything worthwhile. And then, oh, sure a jury of his peers, like that’s going to do anything.

..

It was indeed surreal to hear a Justice cavalierly dismiss our justice system.

[dislaxxic]

The Last Thing This Supreme Court Could Do to Shock Us

...and yet, this story is, somehow, VERY SHOCKING!

For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. There were promising signs: They had, after all, refused to wade into the Trumpian efforts to set aside the election results in 2020. They had, after all, hewed to a kind of sanity in batting away Trumpist claims about presidential records (with the lone exception of Clarence Thomas, too long marinated in the Ginni-scented Kool-Aid to be capable of surprising us, but he was just one vote). We promised ourselves that there would be cool heads and grand bargains and that even though the court might sometimes help Trump in small ways, it would privilege the country in the end. We kept thinking that at least for Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts, the voice of reasoned never-Trumpers might still penetrate the Fox News fog. We told ourselves that at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.

On Thursday, during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions. This was the case we had been waiting for, and all was made clear—brutally so. These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president’s outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election—but the Justice Department’s efforts to prosecute him for the act. These justices fear that it is Trump’s prosecution for election subversion that will “destabilize” democracy, requiring them to read a brand-new principle of presidential immunity into a Constitution that guarantees nothing of the sort. They evinced virtually no concern for our ability to continue holding free and fair elections that culminate in a peaceful transfer of power. They instead offered endless solicitude for the former president who fought that transfer of power.

However the court disposes of Trump v. U.S., the result will almost certainly be precisely what the former president craves: more delays, more hearings, more appeals—more of everything but justice. This was not a legitimate claim from the start, but a wild attempt by Trump’s attorneys to use his former role as chief executive of the United States to shield himself from the consequences of trying to turn the presidency into a dictatorship. After so much speculation that these reasonable, rational jurists would surely dispose of this ridiculous case quickly and easily, Thursday delivered a morass of bad-faith hand-wringing on the right about the apparently unbearable possibility that a president might no longer be allowed to wield his powers of office in pursuit of illegal ends. Just as bad, we heard a constant minimization of Jan. 6, for the second week in a row, as if the insurrection were ancient history, and history that has since been dramatically overblown, presumably for Democrats’ partisan aims.

We got an early taste of this minimization in Trump v. Anderson, the Colorado case about removing Trump from the ballot. The court didn’t have the stomach to discuss the violence at the Capitol in its sharply divided decision, which found for Trump; indeed, the majority barely mentioned the events of Jan. 6 at all when rejecting Colorado’s effort to bar from the ballot an insurrectionist who tried to steal our democracy. But we let that one be, because we figured special counsel Jack Smith would ride to the rescue. Smith has indicted Trump on election subversion charges related to Jan. 6, and the biggest obstacle standing between the special counsel and a trial has been the former president’s outlandish claim that he has absolute immunity from criminal charges as a result of his having been president at the time. Specifically, Trump alleges that his crusade to overturn the election constituted “official acts” that are immune from criminal liability under a heretofore unknown constitutional principle that the chief executive is quite literally above the law.

The U.S. Court of Appeals for the District of Columbia Circuit held in February that the president does not have blanket or absolute immunity for all actions taken in office, including “official” acts performed under the guise of executing the law (for example, Trump’s attempt to weaponize the DOJ against election results under the pretense of investigating fraud). The D.C. Circuit’s emphatic, cross-ideological decision should have been summarily affirmed by SCOTUS within days. Instead, the justices set it for arguments two months down the road—a bad omen, to put it mildly. Even then, many court watchers held out hope that Thursday morning’s oral arguments were to be the moment for the nine justices of the Supreme Court to finally indicate their readiness to take on Trump, Trumpism, illiberalism, and slouching fascism.

It was not to be. Justice Samuel Alito best captured the spirit of arguments when he asked gravely “what is required for the functioning of a stable democratic society” (good start!), then answered his own question: total immunity for criminal presidents (oh, dear). Indeed, anything but immunity would, he suggested, encourage presidents to commit more crimes to stay in office: “Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Never mind that the president in question did not leave office peacefully and is not sitting quietly in retirement but is instead running for presidential office once again. No, if we want criminal presidents to leave office when they lose, we have to let them commit crimes scot-free. If ever a better articulation of the legal principle “Don’t make me hit you again” has been proffered at an oral argument, it’s hard to imagine it.

Justice Sonia Sotomayor spoke to this absurdity when she responded in what could only be heard as a cri de coeur: “Stable democratic society needs good faith of public officials,” she said. “That good faith assumes that they will follow the law.” The justice noted that despite all the protections in place, a democracy can sometimes “potentially fail.” She concluded: “In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?”

But it was probably too late to make this plea, because by that point we had heard both Alito and Gorsuch opine that presidents must be protected at all costs from the whims of overzealous deep state prosecutors brandishing “vague” criminal statutes. We heard Kavanaugh opine mindlessly on the independent counsel statute and how mean it is to presidents, reading extensively from Justice Antonin Scalia’s dissent in a case arguing that independent counsels are unconstitutional. (Yes, Kavanaugh worked for Ken Starr, the independent counsel.) If you’re clocking a trend here, it’s gender. Just as was the case in Anderson, it’s the women justices doing the second-shift work here: both probing the thorny constitutional and criminal questions and signaling a refusal to tank democracy over abstractions and deflections. As was the case in the EMTALA arguments, it’s the women who understand what it looks like to cheat death.

Is the president, Sotomayor asked, immune from prosecution if he orders the military to assassinate a political rival? Yes, said John Sauer, who represented Trump—though it “depends on the circumstances.” Could the president, Justice Elena Kagan asked, order the military to stage a coup? Yes, Sauer said again, depending on the circumstances. To which Kagan tartly replied that Sauer’s insistence on specifying the “circumstances” boiled down to “Under my test, it’s an official act, but that sure sounds bad, doesn’t it?” (Cue polite laughter in the chamber.)

This shameless, maximalist approach should have drawn anger from the conservative justices—indignation, at least, that Sauer took them for such easy marks. But it turns out that he calibrated his terrible arguments just right. The cynicism on display was truly breathtaking: Alito winkingly implied to Michael Dreeben, representing Smith, that we all know that Justice Department lawyers are political hacks, right? Roberts mocked Dreeben for saying “There’s no reason to worry because the prosecutor will act in good faith.”

The conservative justices are so in love with their own voices and so convinced of their own rectitude that they monologued about how improper it was for Dreeben to keep talking about the facts of this case, as opposed to the “abstract” principles at play. “I’m talking about the future!” Kavanaugh declared at one point to Dreeben, pitching himself not as Trump’s human shield but as a principled defender of the treasured constitutional right of all presidents to do crime. (We’re sure whatever rule he cooks up will apply equally to Democratic presidents, right?) Kavanaugh eventually landed on the proposition that prosecutors may charge presidents only under criminal statutes that explicitly state they can be applied to the president. Which, as Sotomayor pointed out, would mean no charges everywhere, because just a tiny handful of statutes are stamped with the label “CAN BE APPLIED TO PRESIDENT.”

The words bold and fearless action were repeated on a loop today, as a kind of mantra of how effective presidents must be free to act quickly and decisively to save democracy from the many unanticipated threats it faces. And yet the court—which has been asked to take bold and fearless action to deter the person who called Georgia’s secretary of state to demand that he alter the vote count, and threatened to fire DOJ officials who would not help steal an election—is backing away from its own duty. The prospect of a criminal trial for a criminal president shocked and appalled five men: Thomas, Alito, Kavanaugh, and Gorsuch suggested that Smith’s entire prosecution is unconstitutional; meanwhile, Roberts sounded eager at times to handle the case just a hair more gracefully: by cutting out its heart by preventing the jury from hearing about “official acts” (which lie at the center of the alleged conspiracy). Justice Amy Coney Barrett was far more measured, teasing out a compromise with Dreeben that would compel the trial court to tell the jury it could not impose criminal liability for these “official” acts, only “private ones.” Remember, drawing that line would require months of hearings and appeals, pushing any trial into 2025 or beyond. The president who tried to steal the most recent election is running in the next one, which is happening in mere months.

The liberal justices tried their best to make the case that justice required denying Trump’s sweeping immunity claim, permitting the trial to move forward, and sorting out lingering constitutional issues afterward, as virtually all other criminal defendants must do. They got little traction. Everyone on that bench was well aware that the entire nation was listening to arguments; that the whole nation wants to understand whether Trump’s refusal to concede the 2020 election was an existential threat to democracy or a lark. Five justices sent the message, loud and clear, that they are far more worried about Trump’s prosecution at the hands of the deep-state DOJ than about his alleged crimes, which were barely mentioned. This trial will almost certainly face yet more delays. These delays might mean that its subject could win back the presidency in the meantime and render the trial moot. But the court has now signaled that nothing he did was all that serious and that the danger he may pose is not worth reining in. The real threats they see are the ones Trump himself shouts from the rooftops: witch hunts and partisan Biden prosecutors. These men have picked their team. The rest hardly matters.

[a fan]

The Last Thing This Supreme Court Could Do to Shock Us

...and yet, this story is, somehow, VERY SHOCKING!

Wish I would have been there to question the Justices when they play this game and ask them....."If the President is immune, and you're pulling that out of thin air as this protection is nowhere in the Constitution....why isn't this immunity you're considering given to Congress? Or Judges? Why only the executive branch?

And why stop there? Why not Congressional aides and staff, since the excuse given here is that it's political retribution to prosecute someone in the political level of Federal Government?

I guess we'll see how they rule before putting on hairshirts........might be much ado about nothing.

[PizzaSnake]

The Last Thing This Supreme Court Could Do to Shock Us

...and yet, this story is, somehow, VERY SHOCKING!

Wish I would have been there to question the Justices when they play this game and ask them....."If the President is immune, and you're pulling that out of thin air as this protection is nowhere in the Constitution....why isn't this immunity you're considering given to Congress? Or Judges? Why only the executive branch?

And why stop there? Why not Congressional aides and staff, since the excuse given here is that it's political retribution to prosecute someone in the political level of Federal Government?

I guess we'll see how they rule before putting on hairshirts........might be much ado about nothing.

Quite the needle they are threading: too much immunity, Biden never leaves, none, their golden calf is smelted before their eyes. So, delay, and maybe the bloated tick can reattach to the body politic...

[dislaxxic]

GREAT essay by the inimitable Dahlia Lithwick about how rightwing activist, extremists in the legal community and, unfortunately, now dominating the US SCOTUS have twisted the "originalist" notion of interpreting and "enforcing" the Constitution beyond reasonable recognition.

How Originalism Ate the Law

"America is captive to a legal theory that dictates our laws on guns, abortion, and so much more. We need to act."

America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are.

[snip]

Here is the thing: Most Americans are well aware that the MAGA supermajority on the current Supreme Court is drunk on something. They know that the result in the Dobbs decision that overturned Roe v. Wade was rooted in a view of constitutional history that came from a time in which women had no vote and were property, to boot. They know that the gun violence epidemic is unfixable because the Supreme Court can’t or won’t discern the difference between arming the general populace with “smoothbore, muzzle-loaded, and powder-and-ramrod muskets” and assault weapons. Most Americans are by now aware that, as professor Melissa Murray has put it, “History is messy. It’s not straightforward or fair. It’s not made by most.” They know that a commitment to living in the 21st century while in legal thrall to the 18th is bizarre on its best days and lethal on its worst days. Indeed, were they allowed to vote on it, most Americans would wholeheartedly reject a theory of the Constitution that unravels two centuries of progress and understanding. But originalism is the invisible force that allows a handful of unaccountable jurists to unravel both progress and understanding along with the wants of the majority.

Most Americans also know that holding us hostage to the dictates of the 18th century is an antidemocratic checkmate. They understand intuitively that while public opinion favors reproductive freedom and sensible gun regulations and the right to vote, the MAGA faction of the Supreme Court has found a doctrinal party trick to ensure that nobody can have any of those things because they weren’t protected at the founding or at the time of the Reconstruction Amendments, or whichever point of history the high court deems relevant (it varies). In the single most horrific case in the horrific term at the Supreme Court, gun rights zealots argued that a man who had lost the right to possess a firearm as the result of having beat up his girlfriend should be allowed to possess that firearm—because historically, domestic abusers were not disarmed. In October 2022, a federal judge in West Virginia ruled that the federal ban on possessing a gun with its serial number removed was unconstitutional because, as the judge wrote ruefully, “A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time.” This is the world we are living in. It is the world we are acceding to inhabit.

Shackling one’s understanding of the law to the drunken methodology of “originalism” doesn’t simply ignore the technological realities of modern life, like serial numbers, and bump stocks, and the vagaries of online content moderation. It also turns every judge and lawyer into a part-time Revolutionary War reenactor and part-time recreational archivist (whose bare-bones understanding of history tends to become immediately obvious). As the Supreme Court burns down decades of doctrinal progress and a century of modern government, it leaves only skid marks in its wake. What is a judge to do? She must make her best guesses about whose history matters and wait to see what the history oracles will permit. No system of law that relies on stability, predictability, and consistency can function when “history” means merely whatever five amateur historians decide it means at any given moment. And the test itself keeps morphing: “original intent” to “original public meaning” to “text and history” to “history and tradition.” Now “tradition” is under fire from the right because it might modernize the law a tad too much, so we’re due for another round of refinement. Having leapt seamlessly from “text and meaning” to “history and tradition” one can only wonder what’s next. “Fish and chips” and then on to “Salt-N-Pepa”? The test for what counts as eternal and immutable history just keeps on evolving.

More on "Inclusive Constitutionalism", perhaps a way out of this mess, here ...

..

[cradleandshoot]

GREAT essay by the inimitable Dahlia Lithwick about how rightwing activist, extremists in the legal community and, unfortunately, now dominating the US SCOTUS have twisted the "originalist" notion of interpreting and "enforcing" the Constitution beyond reasonable recognition.

How Originalism Ate the Law

"America is captive to a legal theory that dictates our laws on guns, abortion, and so much more. We need to act."

America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are.

[snip]

Here is the thing: Most Americans are well aware that the MAGA supermajority on the current Supreme Court is drunk on something. They know that the result in the Dobbs decision that overturned Roe v. Wade was rooted in a view of constitutional history that came from a time in which women had no vote and were property, to boot. They know that the gun violence epidemic is unfixable because the Supreme Court can’t or won’t discern the difference between arming the general populace with “smoothbore, muzzle-loaded, and powder-and-ramrod muskets” and assault weapons. Most Americans are by now aware that, as professor Melissa Murray has put it, “History is messy. It’s not straightforward or fair. It’s not made by most.” They know that a commitment to living in the 21st century while in legal thrall to the 18th is bizarre on its best days and lethal on its worst days. Indeed, were they allowed to vote on it, most Americans would wholeheartedly reject a theory of the Constitution that unravels two centuries of progress and understanding. But originalism is the invisible force that allows a handful of unaccountable jurists to unravel both progress and understanding along with the wants of the majority.

Most Americans also know that holding us hostage to the dictates of the 18th century is an antidemocratic checkmate. They understand intuitively that while public opinion favors reproductive freedom and sensible gun regulations and the right to vote, the MAGA faction of the Supreme Court has found a doctrinal party trick to ensure that nobody can have any of those things because they weren’t protected at the founding or at the time of the Reconstruction Amendments, or whichever point of history the high court deems relevant (it varies). In the single most horrific case in the horrific term at the Supreme Court, gun rights zealots argued that a man who had lost the right to possess a firearm as the result of having beat up his girlfriend should be allowed to possess that firearm—because historically, domestic abusers were not disarmed. In October 2022, a federal judge in West Virginia ruled that the federal ban on possessing a gun with its serial number removed was unconstitutional because, as the judge wrote ruefully, “A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time.” This is the world we are living in. It is the world we are acceding to inhabit.

Shackling one’s understanding of the law to the drunken methodology of “originalism” doesn’t simply ignore the technological realities of modern life, like serial numbers, and bump stocks, and the vagaries of online content moderation. It also turns every judge and lawyer into a part-time Revolutionary War reenactor and part-time recreational archivist (whose bare-bones understanding of history tends to become immediately obvious). As the Supreme Court burns down decades of doctrinal progress and a century of modern government, it leaves only skid marks in its wake. What is a judge to do? She must make her best guesses about whose history matters and wait to see what the history oracles will permit. No system of law that relies on stability, predictability, and consistency can function when “history” means merely whatever five amateur historians decide it means at any given moment. And the test itself keeps morphing: “original intent” to “original public meaning” to “text and history” to “history and tradition.” Now “tradition” is under fire from the right because it might modernize the law a tad too much, so we’re due for another round of refinement. Having leapt seamlessly from “text and meaning” to “history and tradition” one can only wonder what’s next. “Fish and chips” and then on to “Salt-N-Pepa”? The test for what counts as eternal and immutable history just keeps on evolving.

More on "Inclusive Constitutionalism", perhaps a way out of this mess, here ...

..

Sure, why not give carte blanch to FLP radical liberals to rewrite the US Constitution on their own terms? Pigs will fly there Dis before that ever happens. All things being equal the USA can then let the FRC wing nuts to rewrite the tax code.

[dislaxxic]

It's a hard topic, i know Cranky. Care to take a position on Originalism as it's being practiced today at the SCOTUS?

..

[Seacoaster(1)]

GREAT essay by the inimitable Dahlia Lithwick about how rightwing activist, extremists in the legal community and, unfortunately, now dominating the US SCOTUS have twisted the "originalist" notion of interpreting and "enforcing" the Constitution beyond reasonable recognition.

How Originalism Ate the Law

"America is captive to a legal theory that dictates our laws on guns, abortion, and so much more. We need to act."

America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are.

[snip]

Here is the thing: Most Americans are well aware that the MAGA supermajority on the current Supreme Court is drunk on something. They know that the result in the Dobbs decision that overturned Roe v. Wade was rooted in a view of constitutional history that came from a time in which women had no vote and were property, to boot. They know that the gun violence epidemic is unfixable because the Supreme Court can’t or won’t discern the difference between arming the general populace with “smoothbore, muzzle-loaded, and powder-and-ramrod muskets” and assault weapons. Most Americans are by now aware that, as professor Melissa Murray has put it, “History is messy. It’s not straightforward or fair. It’s not made by most.” They know that a commitment to living in the 21st century while in legal thrall to the 18th is bizarre on its best days and lethal on its worst days. Indeed, were they allowed to vote on it, most Americans would wholeheartedly reject a theory of the Constitution that unravels two centuries of progress and understanding. But originalism is the invisible force that allows a handful of unaccountable jurists to unravel both progress and understanding along with the wants of the majority.

Most Americans also know that holding us hostage to the dictates of the 18th century is an antidemocratic checkmate. They understand intuitively that while public opinion favors reproductive freedom and sensible gun regulations and the right to vote, the MAGA faction of the Supreme Court has found a doctrinal party trick to ensure that nobody can have any of those things because they weren’t protected at the founding or at the time of the Reconstruction Amendments, or whichever point of history the high court deems relevant (it varies). In the single most horrific case in the horrific term at the Supreme Court, gun rights zealots argued that a man who had lost the right to possess a firearm as the result of having beat up his girlfriend should be allowed to possess that firearm—because historically, domestic abusers were not disarmed. In October 2022, a federal judge in West Virginia ruled that the federal ban on possessing a gun with its serial number removed was unconstitutional because, as the judge wrote ruefully, “A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time.” This is the world we are living in. It is the world we are acceding to inhabit.

Shackling one’s understanding of the law to the drunken methodology of “originalism” doesn’t simply ignore the technological realities of modern life, like serial numbers, and bump stocks, and the vagaries of online content moderation. It also turns every judge and lawyer into a part-time Revolutionary War reenactor and part-time recreational archivist (whose bare-bones understanding of history tends to become immediately obvious). As the Supreme Court burns down decades of doctrinal progress and a century of modern government, it leaves only skid marks in its wake. What is a judge to do? She must make her best guesses about whose history matters and wait to see what the history oracles will permit. No system of law that relies on stability, predictability, and consistency can function when “history” means merely whatever five amateur historians decide it means at any given moment. And the test itself keeps morphing: “original intent” to “original public meaning” to “text and history” to “history and tradition.” Now “tradition” is under fire from the right because it might modernize the law a tad too much, so we’re due for another round of refinement. Having leapt seamlessly from “text and meaning” to “history and tradition” one can only wonder what’s next. “Fish and chips” and then on to “Salt-N-Pepa”? The test for what counts as eternal and immutable history just keeps on evolving.

More on "Inclusive Constitutionalism", perhaps a way out of this mess, here ...

..

Really interesting article; thanks for posting it, Dis.

[cradleandshoot]

It's a hard topic, i know Cranky. Care to take a position on Originalism as it's being practiced today at the SCOTUS?

..

I think the founding fathers gave us a unique constitution. Our nation has the ability to amend the constitution when the need arises. The nation sure as hell doesn't need a bunch of incompetent FLP liberals deciding they need to fix what isn't broken. I do understand why you and your progressive friends would love to get your mitts on it. The American people will then get a clear vision about what the government wants to do to us. You liberal folk just HATE that damn constitution in its present form. Common sense will prevail shorty and the American people won't let you rewrite the constitution with a progressive vision in mind. Our founding fathers were well aware of scoundrels like you working tirelessly to undermine the US Constitution.

[dislaxxic]

It's a hard topic, i know Cranky. Care to take a position on Originalism as it's being practiced today at the SCOTUS?

..

I think the founding fathers gave us a unique constitution. Our nation has the ability to amend the constitution when the need arises. The nation sure as hell doesn't need a bunch of incompetent FLP liberals deciding they need to fix what isn't broken. I do understand why you and your progressive friends would love to get your mitts on it. The American people will then get a clear vision about what the government wants to do to us. You liberal folk just HATE that damn constitution in its present form. Common sense will prevail shorty and the American people won't let you rewrite the constitution with a progressive vision in mind. Our founding fathers were well aware of scoundrels like you working tirelessly to undermine the US Constitution.

Does anyone know what Uncle Cranky is talking about? Not for nothin, but what does a discussion about the concept of Originalism and the way the current SCOTUS wields it, have to do with "FLP scoundrels...working tirelessly to undermine the US Constitution"?

In the black and white world that C&S largely occupies, which is to say, where a LOT of low-information voters like those in the Trump base live, ANY attempt to understand why looking at the Constitution ONLY through the eyes of the Framers - WHEN THEY WROTE THE THING - is what is actually "undermining the Constitution" in some people's minds. "Originalism GOOD because liberals think it's BAD." Snort, gurgle.

..

[cradleandshoot]

It's a hard topic, i know Cranky. Care to take a position on Originalism as it's being practiced today at the SCOTUS?

..

I think the founding fathers gave us a unique constitution. Our nation has the ability to amend the constitution when the need arises. The nation sure as hell doesn't need a bunch of incompetent FLP liberals deciding they need to fix what isn't broken. I do understand why you and your progressive friends would love to get your mitts on it. The American people will then get a clear vision about what the government wants to do to us. You liberal folk just HATE that damn constitution in its present form. Common sense will prevail shorty and the American people won't let you rewrite the constitution with a progressive vision in mind. Our founding fathers were well aware of scoundrels like you working tirelessly to undermine the US Constitution.

Does anyone know what Uncle Cranky is talking about? Not for nothin, but what does a discussion about the concept of Originalism and the way the current SCOTUS wields it, have to do with "FLP scoundrels...working tirelessly to undermine the US Constitution"?

In the black and white world that C&S largely occupies, which is to say, where a LOT of low-information voters like those in the Trump base live, ANY attempt to understand why looking at the Constitution ONLY through the eyes of the Framers - WHEN THEY WROTE THE THING - is what is actually "undermining the Constitution" in some people's minds. "Originalism GOOD because liberals think it's BAD." Snort, gurgle.

..

Don't play silly there Dis. You know exactly what I'm talking about.

[jhu72]

It's a hard topic, i know Cranky. Care to take a position on Originalism as it's being practiced today at the SCOTUS?

..

I think the founding fathers gave us a unique constitution. Our nation has the ability to amend the constitution when the need arises. The nation sure as hell doesn't need a bunch of incompetent FLP liberals deciding they need to fix what isn't broken. I do understand why you and your progressive friends would love to get your mitts on it. The American people will then get a clear vision about what the government wants to do to us. You liberal folk just HATE that damn constitution in its present form. Common sense will prevail shorty and the American people won't let you rewrite the constitution with a progressive vision in mind. Our founding fathers were well aware of scoundrels like you working tirelessly to undermine the US Constitution.

Does anyone know what Uncle Cranky is talking about? Not for nothin, but what does a discussion about the concept of Originalism and the way the current SCOTUS wields it, have to do with "FLP scoundrels...working tirelessly to undermine the US Constitution"?

In the black and white world that C&S largely occupies, which is to say, where a LOT of low-information voters like those in the Trump base live, ANY attempt to understand why looking at the Constitution ONLY through the eyes of the Framers - WHEN THEY WROTE THE THING - is what is actually "undermining the Constitution" in some people's minds. "Originalism GOOD because liberals think it's BAD." Snort, gurgle.

..

... It is as usual an irrelevant mindless rant, having nothing to do with the subject (at hand) of originalism. What, you expect more? I could have missed his nonsense if it were not for you.

[dislaxxic]

‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives

Princeton Professor Robert P. George, a leader of the conservative legal movement and confidant of the judicial activist and Donald Trump ally Leonard Leo, made the case for overturning Roe v. Wade in an amicus brief a year before the Supreme Court issued its watershed ruling.

Roe, George claimed, had been decided based on “plain historical falsehoods.” For instance, for centuries dating to English common law, he asserted, abortion has been considered a crime or “a kind of inchoate felony for felony-murder purposes.”

The argument was echoed in dozens of amicus briefs supporting Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case that struck down the constitutional right to abortion in 2022. Seven months before the decision, the argument was featured in an article on the web page of the conservative legal network, the Federalist Society, where Leo is co-chair.

In his majority opinion, Justice Samuel Alito used the same quote from Henry de Bracton, the medieval English jurist, that George cited in his amicus brief to help demonstrate that “English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime.”

George, however, is not a historian. Major organizations representing historians strongly disagree with him.

That this questionable assertion is now enshrined in the court’s ruling is “a flawed and troubling precedent,” the Organization of American Historians, which represents 6,000 history scholars and experts, and the American Historical Association, the largest membership association of professional historians in the world, said in a statement. It is also a prime example of how a tight circle of conservative legal activists have built a highly effective thought chamber around the court’s conservative flank over the past decade.

A POLITICO review of tax filings, financial statements and other public documents found that Leo and his network of nonprofit groups are either directly or indirectly connected to a majority of amicus briefs filed on behalf of conservative parties in seven of the highest-profile rulings the court has issued over the past two years.

It is the first comprehensive review of amicus briefs that have streamed into the court since Trump nominated Justice Amy Coney Barrett in 2020, solidifying the court’s conservative majority. POLITICO’s review found multiple instances of language used in the amicus briefs appearing in the court’s opinions.

The Federalist Society, the 70,000-member organization that Leo co-chairs, does not take political positions. But the movement centered around the society often weighs in through many like-minded groups. In 15 percent of the 259 amicus briefs for the conservative side in the seven cases, Leo was either a board member, official or financial backer through his network of the group that filed the brief. Another 55 percent were from groups run by individuals who share board memberships with Leo, worked for entities funded by his network or were among a close-knit circle of legal experts that includes chapter heads who serve under Leo at the Federalist Society.

The picture that emerges is of an exceedingly small universe of mostly Christian conservative activists developing and disseminating theories to change the nation’s legal and cultural landscape. It also casts new light on Leo’s outsized role in the conservative legal movement, where he simultaneously advised Trump on Supreme Court nominations, paid for media campaigns promoting the nominees and sought to influence court decision-making on a range of cases.

A shadow group funding and steering an uber-rightwing SCOTUS. Is THIS is country we want?

Really?

..

[cradleandshoot]

‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives

Princeton Professor Robert P. George, a leader of the conservative legal movement and confidant of the judicial activist and Donald Trump ally Leonard Leo, made the case for overturning Roe v. Wade in an amicus brief a year before the Supreme Court issued its watershed ruling.

Roe, George claimed, had been decided based on “plain historical falsehoods.” For instance, for centuries dating to English common law, he asserted, abortion has been considered a crime or “a kind of inchoate felony for felony-murder purposes.”

The argument was echoed in dozens of amicus briefs supporting Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case that struck down the constitutional right to abortion in 2022. Seven months before the decision, the argument was featured in an article on the web page of the conservative legal network, the Federalist Society, where Leo is co-chair.

In his majority opinion, Justice Samuel Alito used the same quote from Henry de Bracton, the medieval English jurist, that George cited in his amicus brief to help demonstrate that “English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime.”

George, however, is not a historian. Major organizations representing historians strongly disagree with him.

That this questionable assertion is now enshrined in the court’s ruling is “a flawed and troubling precedent,” the Organization of American Historians, which represents 6,000 history scholars and experts, and the American Historical Association, the largest membership association of professional historians in the world, said in a statement. It is also a prime example of how a tight circle of conservative legal activists have built a highly effective thought chamber around the court’s conservative flank over the past decade.

A POLITICO review of tax filings, financial statements and other public documents found that Leo and his network of nonprofit groups are either directly or indirectly connected to a majority of amicus briefs filed on behalf of conservative parties in seven of the highest-profile rulings the court has issued over the past two years.

It is the first comprehensive review of amicus briefs that have streamed into the court since Trump nominated Justice Amy Coney Barrett in 2020, solidifying the court’s conservative majority. POLITICO’s review found multiple instances of language used in the amicus briefs appearing in the court’s opinions.

The Federalist Society, the 70,000-member organization that Leo co-chairs, does not take political positions. But the movement centered around the society often weighs in through many like-minded groups. In 15 percent of the 259 amicus briefs for the conservative side in the seven cases, Leo was either a board member, official or financial backer through his network of the group that filed the brief. Another 55 percent were from groups run by individuals who share board memberships with Leo, worked for entities funded by his network or were among a close-knit circle of legal experts that includes chapter heads who serve under Leo at the Federalist Society.

The picture that emerges is of an exceedingly small universe of mostly Christian conservative activists developing and disseminating theories to change the nation’s legal and cultural landscape. It also casts new light on Leo’s outsized role in the conservative legal movement, where he simultaneously advised Trump on Supreme Court nominations, paid for media campaigns promoting the nominees and sought to influence court decision-making on a range of cases.

A shadow group funding and steering an uber-rightwing SCOTUS. Is THIS is country we want?

Really?

..

What country should we want Bart?
I'm hoping you reply when you wake up from your nappy poo.

[dislaxxic]

What country should we want Bart?I'm ho ping you reply when you wake up from your nappy poo.

Oh, i don know. How bout a country where we don't base important jurisprudence on the literal written words of a bunch of 18th century white slaveowners? They created a government system the likes of which had never been seen in our world. The notion of "All Men Are Created Equal" with "Certain Inalienable Rights" is nothing short of almost divine brilliance. However, our SCOTUS is not made up of a bunch of professional historians. Divining an intent in words written in the 1770's is no easy trick. It is also a mission fraught with the potential for ill intent and perfidy, not to mention mis-reading.

How bout a country where private interest don't rule our lives? Corporations are "people" because of a footnote in a SCOTUS opinion. Big Food poisons us. Big Pharma bleeds us dry. Gutting the ability of a government to regulate pollution, water quality, air quality, monopolistic behaviors, all MANNER of certain groups and industries all pursuing their own "Life, Liberty and the Pursuit of Happiness" from their "corporate personality"...well, can you see where i'm going??

..

ps: Naps are one of the best things about retirement.

[Seacoaster(1)]

What country should we want Bart?I'm ho ping you reply when you wake up from your nappy poo.

Oh, i don know. How bout a country where we don't base important jurisprudence on the literal written words of a bunch of 18th century white slaveowners? They created a government system the likes of which had never been seen in our world. The notion of "All Men Are Created Equal" with "Certain Inalienable Rights" is nothing short of almost divine brilliance. However, our SCOTUS is not made up of a bunch of professional historians. Divining an intent in words written in the 1770's is no easy trick. It is also a mission fraught with the potential for ill intent and perfidy, not to mention mis-reading.

How bout a country where private interest don't rule our lives? Corporations are "people" because of a footnote in a SCOTUS opinion. Bid Food poisons us. Big Pharma bleeds us dry. Gutting the ability of a government to regulate pollution, water quality, air quality, monopolistic behaviors, all MANNER of certain groups and industries all pursuing their own "Life, Liberty and the Pursuit of Happiness" from their "corporate personality"...well, can you see where i'm going??

..

ps: Naps are one of the best things about retirement.

Commie.

[cradleandshoot]

What country should we want Bart?I'm ho ping you reply when you wake up from your nappy poo.

Oh, i don know. How bout a country where we don't base important jurisprudence on the literal written words of a bunch of 18th century white slaveowners? They created a government system the likes of which had never been seen in our world. The notion of "All Men Are Created Equal" with "Certain Inalienable Rights" is nothing short of almost divine brilliance. However, our SCOTUS is not made up of a bunch of professional historians. Divining an intent in words written in the 1770's is no easy trick. It is also a mission fraught with the potential for ill intent and perfidy, not to mention mis-reading.

How bout a country where private interest don't rule our lives? Corporations are "people" because of a footnote in a SCOTUS opinion. Bid Food poisons us. Big Pharma bleeds us dry. Gutting the ability of a government to regulate pollution, water quality, air quality, monopolistic behaviors, all MANNER of certain groups and industries all pursuing their own "Life, Liberty and the Pursuit of Happiness" from their "corporate personality"...well, can you see where i'm going??

..

ps: Naps are one of the best things about retirement.

We agree, naps are awesome.