The Supreme Court’s rulings over the last two weeks on abortion, gun violence prevention, public funding of religious institutions, and the powers of executive branch agencies reflect a political and ideological agenda, not a coherent legal or judicial philosophy. All of them overturned long-standing precedents – something all the justices pledged not to do in their confirmation hearings.
(Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.)
The six radical, reactionary justices [1] on the U.S. Supreme Court are justifying their rulings with reasoning that is inconsistent and contradictory. There are three important areas where the contradictory nature of the reasoning underlying these rulings is most evident:
- Belief in a weak federal government and strong state governments (discussed in this previous post),
- Belief in “originalism” or “textualism,” i.e., that the language and meaning of the Constitution and its amendments as and when written should be adhered to (see below), and
- Belief in the legality of laws supporting practices “deeply rooted in American tradition” (discussed in a subsequent post).
The Supreme Court’s June 23, 2022, decision declaring unconstitutional New York State’s over 100-year-old requirements for obtaining a permit to carry a gun in public is based on an interpretation of the Second Amendment that gives an individual the “right” to bear arms. This interpretation ignores the first half of the Second Amendment which predicates the right to bear arms on “A well regulated Militia, being necessary for the security of a free State.” An honest originalist could not simply ignore this language. An expanded “right” of individuals to own and carry guns in public does not in any way involve a well-regulated militia (such as the National Guard) nor enhance the security of the state. [2] So much for being true originalists or textualists.
Even ignoring this language from the Second Amendment for a moment, a modern day “right” to bear arms is being applied to arms that could not have been imagined at the time the Constitution was written. If the “right” to bear arms were being applied to muzzle-loading guns that took many seconds to reload, that would align with the original intention of the writers of the Second Amendment. Applying it to guns that can fire multiple bullets per second (and much more lethal bullets too) cannot be said (with a straight face) to be originalism. (See this previous post for more detail on the history of the interpretation of the Second Amendment as creating a “right” for individuals, as opposed to a militia, to bear arms.)
Similarly, the Supreme Court’s recent rulings overturning decades-old, affirmed precedents on the separation of church and state ignore the First Amendment language that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (See this previous post for more detail on specific rulings.) The intent seems clear and the amendment has been interpreted since it was written as prohibiting governments at any level from supporting a specific religion. For six supposed “originalists” to come to a different conclusion 200 years later, seems to make it clear that they are not really originalists.
In their ruling on June 30, 2022, declaring that the Environmental Protection Agency (EPA) does not have the authority to regulate carbon emissions from power plants, the six supposed originalist (aka textualist) Supreme Court justices relied on a new rationale found nowhere in the Constitution. In her dissenting opinion, Justice Kagan called out the hypocrisy of the six deciding justices who, while claiming to be originalists, are, in fact, inventing new doctrines to achieve the outcomes they desire. “The current Court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, [new rationales] magically appear as get-out-of-text-free cards.” [3] The ruling in the EPA case overturned grants of authority to executive branch agencies that have occurred since the first sessions of Congress. However, what was fine with the Framers and the Founding Fathers themselves, is not constitutional according to the Court’s reactionary majority today. So originalism or textualism goes out the window when it does not fit with these six justices’ political and ideological agenda. [4]
Many of this year’s rulings by the six radical, reactionary justices (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) overturn long-standing precedents, i.e., legal interpretations and multiple court rulings by the Supreme Court and other courts that have been in place for years, some literally going back 200 years. It belies their claim to be originalists when suddenly, these six justices know better what the Constitution means and what its writers intended than the numerous judges and legal scholars who have gone before them.
Finally, these justices are totally ignoring the preamble to the Constitution, which states, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” It’s hard to see any commitment to the general welfare, domestic tranquility, or liberty in their rulings expanding the presence of extremely lethal guns on the streets of America, requiring state and local governments to support religious institutions or practices (even allowing coercion of public school students), or denying women the ability (i.e., liberty) to make decisions about their own pregnancies.
In conclusion, it’s impossible to believe the six justices’ claims that they are pursuing the original intentions of the Constitution and its writers. Rather, they are using “originalism” as a smokescreen for acting on the basis of their personal political and ideological beliefs. They are not acting as impartial judges upholding the laws established by the legislative and executive branches of government, but rather they are legislating from the bench as they see fit.
In my next post, I will review the contradictory and inconsistent nature of the six radical, reactionary Supreme Court justices’ use of their supposed belief in the legality of laws supporting practices “deeply rooted in American tradition.”
[1] See this previous post for an explanation of the appropriateness of calling these six justices radical and reactionary.
[2] Johnson, J., 6/23/22, “ ‘Devastating’: Supreme Court blows massive hole in state gun control efforts,” Common Dreams (https://www.commondreams.org/news/2022/06/23/devastating-supreme-court-blows-massive-hole-state-gun-control-efforts)
[3] Cox Richardson, H., 6/30/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/june-30-2022)
[4] Hubbell, R., 7/1/22, “We have made it through the worst,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/we-have-made-it-through-the-worst)
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