The divide on the Supreme Court is supremely partisan. Still, the justices stubbornly insist that their differences are over legal doctrine, not morality or politics. But they have a tough time saying it with a straight face.
Indeed, conservatives have reworked their guiding doctrine, known as originalism. The late Justice Antonin Scalia, the movement’s best-known evangelist, touted originalism as the avenue to removing judicial involvement where it suited him and charging in where he wanted. Leave abortion to the states, Scalia often proclaimed. We don’t make laws from the bench. Then he wrote the Heller opinion striking down state gun control laws in which he ignored the text and twisted the history. This term, the Court continued with the originalist fallacy—laying waste to a half century of abortion jurisprudence, ignoring the separation between church and state, and finding a right to carry a concealed weapon.
Scalia used to savage liberal justices like his friend, the late liberal Justice Ruth Bader Ginsburg, who saw the Constitution as an evolving document that must adapt to the times. He used to say scornfully that the liberals believe “the Constitution means whatever your political or moral agenda would like it to mean.” “The Constitution is dead, dead, dead,” said Scalia. For him and his many disciples, the Constitution must be interpreted in accordance with its text and its meaning derived by whatever was happening at the time its white male authors put quill to parchment. Or, as originalist Clarence Thomas put it, “I ain’t evolving”—a position putting him at odds with every conception of a fair common law judge.
The Trump Three (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) and the other three conservative justices (Clarence Thomas, Samuel Alito, and John Roberts) have torn a page from the liberal book. Throwing precedent, judicial restraint, common sense, and even originalism aside, they declare that the Constitution means what their political and moral sensibilities would like it to mean.
Take, for example, this term’s New York State Rifle & Pistol Association v. Bruen. There, five justices joined an opinion by Thomas, striking down New York’s requirement that those seeking a concealed carry show good cause. New York had this legislation in place since 1911 when William Howard Taft was president (he later became chief justice of the Supreme Court), and there was no evidence that it hasn’t been working. No Supreme Court—whether it was led by Taft, Earl Warren, or William Rehnquist—has felt any compelling need to substitute its judgment for New Yorkers and to declare that it was tyranny to ask citizens if they had a good reason for carrying a concealed weapon. The law was simple: Those who could show that they needed guns could get a license, and those who packed guns without a permit were subject to arrest, prosecution, and a stiff sentence.
What was the justification for Thomas’s judgment? Apparently it seemed too difficult to apply constitutional principles of what the 19th- or 18th-century societies thought about concealed guns. So Thomas abandoned originalism and bizarrely turned to 13th-century English history for a standard for carrying dangerous weapons, omitting that handguns were not developed until the 15th century.
Thomas opined that history, not original understanding, will inform the Court’s decision. This is hazardous. Historians choose facts, ignore others, and assemble them selectively in ways that can be illuminating, biased, or even misleading.
In his Bruen dissent, Justice Stephen Breyer declared that judges are miscast as horseback historians, galloping back to a given century to look around and sense the mood before time-traveling back to their chambers to draft an opinion. Historians differ in their interpretations. Some say the Civil War was waged to free the slaves; others say it was waged to save the Union. Some contemporary historians say the Ukraine crisis is the West’s fault; others argue that the Russians went ape.
Reliance on history is a recipe for judicial crusading, not judicial restraint. Gone is the reliance on decided cases (stare decisis), the fabric of common law. We know now that the Court’s right wing is cavalier about precedent. Just read Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, Planned Parenthood v. Casey, and 50 years of abortion jurisprudence.
Of course, the public doesn’t care much about how justices render their rulings. A citizen wants to know: May I use birth control without going to prison? Do I have access to abortion? Can I marry someone of the same sex or a different race? Will the government use my tax dollars to aid schools teaching a religious belief I don’t share?
And, finally, will my representatives be able to regulate guns, so I needn’t worry if the man I accidentally bump on the street is secretly packing heat? No wonder I am afraid. Almost 24,000 Americans a year die as a result of gun violence. Polls say that 59 percent of Americans disapprove of overturning Roe. Confidence in the Supreme Court is at a historic low, with only 25 percent keeping the faith. As FDR put it, “We have … reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself.”
