They’ve been doing that a lot, and for good reason. The whole gist of originalism, and the legitimate gripe conservative scholars have with substantive due process, is that during the latter half of the 20th century the judiciary usurped Congress’ power in actualizing new legal concepts and theories by creating rights out of thin air. Even RBG admitted that Roe was on shaky ground, because in a representative democracy the only entity capable of making laws is Congress. If the law says “the sky is red”, and that law creates obvious societal problems, it’s not the job of the judiciary to say, “no, the sky is blue”. The job of the judiciary is to say, “the law says ‘the sky is red’” and that’s the law that shall be enforced, and then to interpret the words if there’s any disagreement about what “red” means. A functional Congress elected by a sensible electorate in a healthy democracy free of corruption (HA!) would see the obvious error and pass an amendment that changed the law on the books into “the sky is blue.”
The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.
The ball, one might say, was tossed by the justices back into the legislators’ court, where the political forces of the day could operate. The Supreme Court wrote modestly, it put forward no grand philosophy; but by requiring legislative reexamination of once customary sex-based classifications, the Court helped to ensure that laws and regulations would “catch up with a changed world.”
Roe v. Wade, in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court.
That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional.
In short, the only suitable remedy to legal conundrums is a new and updated law. The fact that our democracy has deteriorated to the point where Congressional representatives are really just mouthpieces for interest groups and have insufficient dignity to even attempt overt moral judgments about how to form a more perfect union, explains why the judiciary keeps very clearly reminding them what their job is. Political compromise is hard and takes immense amounts of work and sacrifice, and SCOTUS is reiterating that they’re not going to bail a dysfunctional Congress out by legislating from the bench.
As a counterpoint to your well reasoned argument, you could also easily say constitutional organizists want to strip back any equality or progress our society has made via the courts. They do this by weaponizing the fact that we have a broken legislature. To achieve their goals of stripping freedom and rights from the “outgroups” all they have to do is be explicitly literal when it suits them, ignoring all intent of a law, and then the outgroups will be powerless to actually regain those rights, effectively legislating our nation from the bench.
When a law that helps people that they dont like comes before them, then they can suddenly “guess at intent” and “give standing to anyone.” A clear example of this is when they struck down Biden 400B student loan forgiveness. The law itself gave the executive incredibly wide powers, and Biden worked entirely in them to enact that forgiveness. He followed the “originalist” interpretation, but suddenly all these originalsist jusges had questions about “greater fairness” and “was this really in the intent of the law” when it says in effect “the executive can do what the fuck they want.” They even let a state just “get standing” by claiming one of its agencies would have had standing if it sued. The agency did not in anyway sue. That’s how bad they wanted to not be origionalists when it suited them.
There’s a lot in your comment that’s not necessarily right or wrong, it’s just harder for me to untangle, so instead I’ll address this very salient point:
you could also easily say constitutional organizists want to strip back any equality or progress our society has made via the courts.
The argument of originalists is very specifically that progress shouldn’t be made via the courts in the first place. It’s not the judiciary’s job to push us forward as a society, it’s their job to interpret the Constitution as it’s written. As soon as you open the door for a judge to push us “forward”, you invite them to define for themselves what “forward” means. I don’t think I can understate the damage that would do to this country if the shoe were on the other ideological foot and Christian nationalists were free to decide that “forward” means putting women in the kitchen as subservient partners in a heteronormative nuclear family. And you’re right that the really sinister problem with this particular SCOTUS is that they seem to pick and choose when they want to abide by their stated principles, but on its face originalism is more in line with what the Framers had in mind. It’s just that they also had a lot of other understandings about the American experiment which turned out to be laughably naïve.
The only way to get out of the moralizing doom loop you’re describing is to revert back to judges/justices being neutral arbiters of written law. It’s not foolproof, mind you, because it’s subject to the whims of overt partisans like Thomas and Alito, but it does have a certain philosophical consistency that’s hard to deny.
The argument of originalists is very specifically that progress shouldn’t be made via the courts in the first place.
That is what they say, but for some reason the outcome tends to be the absolute worst interpretation of words taken out of the context of when they were written and ignoring centuries of precedent. They also tend to throw out the laws that are written in response to their rulings.
They’ve been doing that a lot, and for good reason. The whole gist of originalism, and the legitimate gripe conservative scholars have with substantive due process, is that during the latter half of the 20th century the judiciary usurped Congress’ power in actualizing new legal concepts and theories by creating rights out of thin air. Even RBG admitted that Roe was on shaky ground, because in a representative democracy the only entity capable of making laws is Congress. If the law says “the sky is red”, and that law creates obvious societal problems, it’s not the job of the judiciary to say, “no, the sky is blue”. The job of the judiciary is to say, “the law says ‘the sky is red’” and that’s the law that shall be enforced, and then to interpret the words if there’s any disagreement about what “red” means. A functional Congress elected by a sensible electorate in a healthy democracy free of corruption (HA!) would see the obvious error and pass an amendment that changed the law on the books into “the sky is blue.”
In striking down Roe, they clearly signaled that the only remedy would be Congressional action. From Kavanaugh’s concurrence in Dobbs:
RBG herself on Roe:
And Roberts in Shelby v. Holder (a decision which I loathe):
In short, the only suitable remedy to legal conundrums is a new and updated law. The fact that our democracy has deteriorated to the point where Congressional representatives are really just mouthpieces for interest groups and have insufficient dignity to even attempt overt moral judgments about how to form a more perfect union, explains why the judiciary keeps very clearly reminding them what their job is. Political compromise is hard and takes immense amounts of work and sacrifice, and SCOTUS is reiterating that they’re not going to bail a dysfunctional Congress out by legislating from the bench.
As a counterpoint to your well reasoned argument, you could also easily say constitutional organizists want to strip back any equality or progress our society has made via the courts. They do this by weaponizing the fact that we have a broken legislature. To achieve their goals of stripping freedom and rights from the “outgroups” all they have to do is be explicitly literal when it suits them, ignoring all intent of a law, and then the outgroups will be powerless to actually regain those rights, effectively legislating our nation from the bench.
When a law that helps people that they dont like comes before them, then they can suddenly “guess at intent” and “give standing to anyone.” A clear example of this is when they struck down Biden 400B student loan forgiveness. The law itself gave the executive incredibly wide powers, and Biden worked entirely in them to enact that forgiveness. He followed the “originalist” interpretation, but suddenly all these originalsist jusges had questions about “greater fairness” and “was this really in the intent of the law” when it says in effect “the executive can do what the fuck they want.” They even let a state just “get standing” by claiming one of its agencies would have had standing if it sued. The agency did not in anyway sue. That’s how bad they wanted to not be origionalists when it suited them.
There’s a lot in your comment that’s not necessarily right or wrong, it’s just harder for me to untangle, so instead I’ll address this very salient point:
The argument of originalists is very specifically that progress shouldn’t be made via the courts in the first place. It’s not the judiciary’s job to push us forward as a society, it’s their job to interpret the Constitution as it’s written. As soon as you open the door for a judge to push us “forward”, you invite them to define for themselves what “forward” means. I don’t think I can understate the damage that would do to this country if the shoe were on the other ideological foot and Christian nationalists were free to decide that “forward” means putting women in the kitchen as subservient partners in a heteronormative nuclear family. And you’re right that the really sinister problem with this particular SCOTUS is that they seem to pick and choose when they want to abide by their stated principles, but on its face originalism is more in line with what the Framers had in mind. It’s just that they also had a lot of other understandings about the American experiment which turned out to be laughably naïve.
The only way to get out of the moralizing doom loop you’re describing is to revert back to judges/justices being neutral arbiters of written law. It’s not foolproof, mind you, because it’s subject to the whims of overt partisans like Thomas and Alito, but it does have a certain philosophical consistency that’s hard to deny.
That is what they say, but for some reason the outcome tends to be the absolute worst interpretation of words taken out of the context of when they were written and ignoring centuries of precedent. They also tend to throw out the laws that are written in response to their rulings.
Maybe we should evaluate their honesty based on their actions and not what they say their intent is.
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