Can the Supreme Court be saved?
18 years is way too long.
This is a common thread that ties Segall's two books together.
Anyone in that situation -- a lifetime appointment -- would tend to succumb, but originalism is an especially deceptive “just-so story” that only makes that tendency worse.
It meets a lot of psychological needs, in Segall's view, not just for judges, but for the broader public as well.
“When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions,” Segall writes in “Originalism as Faith.”
“In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.”
But originalism simply doesn’t work.
It can’t work as advertised, because the constitutional text isn’t clear enough, and therefore it doesn’t work in fact. Nor does any other supposedly nonpolitical interpretative approach, however.
In “Supreme Myths,” Segall describes the post-Civil War "legal tender" cases, in which the court first ruled paper money unconstitutional, but reversed itself just 15 months later, after two new justices joined the court.
“The new majority pointed to no new facts or arguments supporting its reversal of the prior decision,” Segall writes.
Originalism may be the most popular mask for political decisions, but it’s not the only one. Still, it’s the most potent, and the most dangerous.
“Virtually every constitutional law case" decided by the Supreme Court, Segall told Salon, "involves text that is imprecise, unclear, vague – equal protection, due process, establishment, unreasonable search and seizure, whatever.
And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don't necessarily assume.”
The result we have now is a bastardized legal philosophy of “new originalism” that claims to respect the original text while doing no such thing.
“The main argument in my new book is that originalism doesn't do anything," Segall said.
"It's never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they're doing what they're doing — for transparency purposes.”
. . . .
Conservatives initially advanced originalism as a means for justifying striking down liberal laws passed in the New Deal and Great Society eras, along with their progeny, and reversing Supreme Court decisions by justices appointed during that period.
It was a way of making an ideological package of generally anti-majoritarian ideas seem not merely legitimate, but unquestionably correct.
That charade can no longer be maintained as the court diverges ever farther from the popular will and the raw power politics become increasingly transparent.
The Kavanaugh hearings epitomize everything that can no longer be hidden.
In an author’s note at the beginning of “Originalism as Faith,” Segall discusses the Supreme Court's decision in Janus v. AFSCME, handed down just before his publication date:
In this decision, five conservative Justices invalidated (on free speech grounds) the laws of twenty-three states requiring public employees to pay partial union dues whether or not they joined the union.
The Justices engaged in this aggressive act of judicial review by overturning a unanimous 1977 Supreme Court decision that held exactly the opposite and without any support in the original meaning of the First Amendment.
Justices Thomas and Gorsuch, the two self-avowed Originalists on the Court, joined the opinion in full without comment.
This brand new case perfectly reflects this book’s thesis:
Originalism is a method of constitutional interpretation that is nothing more than a misleading label for conservative results for some (the Justices) and an article of faith for others including many legal scholars and the public at large.
The Janus decision is no anomaly.
With Kavanaugh on the court, or any other justice hand-picked for Donald Trump by the Federalist Society, a similar fate awaits Roe v. Wade.
American women understand this, just as they understand how hard Republicans worked to silence Christine Blasey Ford and rush Kavanaugh onto the bench.
Roe may be overturned all at once, or (more likely) die a death of a thousand cuts, even though it enjoys public support by more than a two-to-one margin.
