Page 61 - ACTL Journal_Sum24

The Roberts court is not Originalist and here’s why: If you have life tenure and virtually unreviewable power and you care about an issue, then no preexisting theoretical con- struct is going to stop you from doing exactly what you want to do. This is why Justices Scalia and Ginsberg or Jus- tices Sotomayor and Alito – all of them great lawyers, all of them smart, all of them well-studied – disagree on virtually every litigated area of Constitutional law. It’s not because they’re smarter than each other; it’s because it’s not about law. And that’s really the main point. Much of the Consti- tution is imprecise text.
frustrating of all of these because there is no Originalist basis for striking down affirmative action; there just isn’t. There never has been. If you don’t believe me, here are two pieces of data for that point. Justice Antonin Scalia,
who voted to strike down every affirmative action law he ever saw, never spent one syllable on the original meaning of the Fourteenth Amendment. Justice Thomas, until last year in his many cases written against affirmative action, never spent one second on the original meaning of the Fourteenth Amendment.
Professor Michael D. Ramsey:
I’m going to say a few words generally about Originalism and then talk about a few cases where I think that Originalism has been important, with a view to convincing you not necessari- ly that Originalism is right, but that Originalism is important. It is a phenomenon that we need to pay attention to as law- yers in framing Constitutional arguments.
So first, I agree with many things that Eric has said about the dangers of a powerful Supreme Court. The idea that the Su- preme Court is not about law I think fairly describes episodes in the Supreme Court’s past, and I think that the concern about our lives being run by unelected, life-tenured judges, is a very serious concern.
Originalism arose in the modern era as a response to those concerns because the aspiration of Originalism is to constrain judges. The aspiration is when judges say that they undertake to apply the Constitution’s meaning, rather than what they think is the best policy for today, that they will indeed, to some extent, be constrained by that pledge. Judges are hu- man; we can’t expect them to always be constrained by that but that’s the aspiration. And as lawyers, I believe that that is the aspiration we should all have because, ultimately, Origi- nalism is a claim about the Rule of Law, not the rule of judges, but the Rule of Law.
So what about the balance between gun rights and public safety? How are we going to figure that out? Not by going back to 1791 when the idea of an assault rifle couldn’t even have entered their minds. How do we balance women’s rights to live an equal role in America with the fetus’ right to live? Well, not by going back to 1868. There is no Originalist basis for women’s equality, yet, we have women’s equality. Even the conservatives on the Roberts court think women deserve equal rights. There’s no Originalist way to get there.
When you give government officials a job for life with virtually unreviewable power, then what you’re saying to them is go do what you want to do. And that is the history of the Supreme Court in America. It is why neither Originalism nor any other construct is ever going to stop them from doing what they want to do. There’s only one constraint, only one: They know they have to keep the confidence of the American people and the President because without the President and the military, they can’t enforce their orders. But that’s the only constraint.
I’m going to make a statement now that may sound very strong to you, but in no free country in world history has there been an institution like our Supreme Court. Here’s an idea: Take a lot of power for life. That’s what kings do. Now, kings have militaries to back up their orders; the Supreme Court doesn’t.
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