This is good (all your stuff is good), but I want to offer one caution. First, a point of agreement. You make an important point that judges aren't purely political actors -- one of the striking things about judicial decision-making is that judges almost always believe, from their own internal perspective, that their decisions are correct applications of the law. It's (almost) never the case that they're rubbing their hands together and saying to themselves, "this decision is legally wrong but advances our political agenda." Otoh, because so much of the judicial decision-making we're looking at is so heavily influenced by a judge's priors and ideology, the outcomes aren't so different from what they would be if the judges *were* purely political actors. (I base this observation on a lot of time spent around judges, including a Supreme Court clerkship, and nearly 40 years as a legal academic.)
The point I want to caution about is that "originalism," as used by FedSoc members or otherwise, is at best a shorthand or synecdoche for a larger complex of conservative legal views and understandings. Callais, for example, isn't an originalist decision, and it doesn't purport to be. My point isn't just that originalism is incoherent and invoked only in the breach (though both of those are true); it's that even from conservative justices' perspectives, originalism just isn't relevant to a lot of important disputes. But there's a lot else in the conservative legal superstructure to help populate conservative justices' internal understanding about what "the law" demands.
Here's an example of one of the ways in which one needs to be careful about this sort of thing: You describe Marty Lederman's brief on the National-Guard deployment issue as "originalist." But there's no constitutional issue in that case. It's true that the brief relies heavily on the legislative history, legislative intent, and historical context of the 1903 statute in question. But relying on legislative history is a classic "liberal" legal methodology. The conservative justices for the most part condemn looking to legislative intent in statutory interpretation; they view that as inconsistent with appropriate "textualism" -- an approach importantly different from the originalism they purport to uphold in constitutional analysis.
Thanks - have added a qualification in main text. Lederman used to live in our old apartment before us, and we used still occasionally to get mail (otherwise I only know him through online interactions)
The Roberts Court is corrupt. It has cemented and is cementing corruption into our system. Radical right corruption will not pack up and leave on its own. It’s time for the states that are providing the bulk of funding for this corruption to cut off the flow of dollars. No taxation without representation. And, to begin a movement to leave this corrupt union, forming one or more new countries. Difficult? Yes. But, better than living in a polity that exists mainly to make the richer and the poor poorer.
“The Roberts Court is not only presiding over the most spectacularly corrupt government in the history of US politics (itself a remarkable achievement). It is actively enabling it, both through its past jurisprudence and current decisions.”
I don't think there is a gradualist, non-political path back from this. If they can get a solid majority of voters to repudiate Trump, Dems need to appoint enough judges to provide a majority pledged reverse every decision brought down by the Repubs since Roberts' appointment. After that, they can do a reform to produce a properly neutral court.
I think I would put it slightly differently. "Purely" is doing a lot of work in Roberts' statement, and it's not just as a qualifier. What it's doing is defining what Roberts thinks politics actually is, which is an instrumental attempt to create outcomes that consciously favor particular interests, structured by an ideology that buttresses such an intent.
What I would say, via the Federalist Society, is that the Supreme Court--and perhaps the American judicial system overall--is that the Supreme Court is political in a *particular* way, and that this particularism matters to both its process and its outcomes. E.g., it matters to Roberts, and perhaps to several other conservatives on the court, that the court nevertheless be a court. That hasn't mattered to Thomas at any time in his work on the court, and it doesn't seem to matter much to Alito. But what has accelerated, via what you accurately call "decadence", is a kind of processual impatience in which the particularity of the way in which the Court does politics is being increasingly dispensed with.
The other thing I'd say is driving at least Alito and Thomas and that Gorsuch and Coney Barrett might not be entirely opposed to (I really don't have a read on Kavanaugh) is an originalism that essentially arrives at its politics by obliterating the text it is set to interpret, e.g., that wants to relocate the determining precedent of American life in a constitutional monarchy, essentially just after the Glorious Revolution--a state with a powerful but not absolutist monarchical executive, a legislative body tightly restricted to major property owners, and with a state religion that tolerated its major theological rival but not other forms of dissenting religion or anti-religious sentiment.
Lenoard Leo has the financial wherewithal to keep the Federalist Society going no matter what. The judges from it, like the Republican party itself, is suffering the fruits of ideological victory, because their sucess is based on corrupting the systems they have gained control of.
Critics of the Supreme Court I've read, like Steve Vladek and Ken White, have forcused more on the way their decisions have been made than the consequences of those decisions, which they are not happy with. The specious reasoning or complete lack of,reasioning is leaving lower courts adrift to read the minds of the Court, who then complain publicly about the lower court's inability to do that. This, like everything else in this administration, is not a stable situation, but it is totally in sync with the Republican party's total dedication to a radical reactionary theory of governance, which boils down to the less the better.
Henry Farrell: Very insightful and worthy commentary on both the Movement sustained by The Federalist Society, the underlying political motivation, and Originalism.
I can understand limiting Government regulation of the free market, in the spirit of 18th c. political economist, David Ricardo, who built a model of perfect competition based upon a society of crafts and small shops.
I can understand the intellectual attraction quite well of looking to: (1) The Constitution; (2) The Federalist; and, (3) William Blackstone.
In this way, a legal scholar might hope to get back to original intent.
I would add, look, too, to the Anti-Federalist deliberations in 1787-1789. The Federalists had to answer apprehensions raised by such as Patrick Henry.
So let me give arguendo the point that such interpretations have legitmacy, scholarly bearing, and tend towards a free market economy.
Arguendo.
I think Alexander Hamilton points towards Abraham Lincoln and FDR.
But I will give these points arguendo.
BUT:
How do we get to John Yoo and torture!
George Washington saw British troops torture captives and decided on acting humanely towards captives.
That is what our Founders thought.
So, what about John Yoo and torture?!
And how do we get from James Madison, Articles I and III, to a unitary Presidency and dictatorial and oppressive powers?!
It seems to me this Supreme Court (specifically the Gang of Six Rubber Stamp Committee) makes a "decision", then works backwards from there to arrive at a "justification". Unless it's done from the shadow docket, in which case no justification is needed.
Thank you for this. Prof Solum at UVa argues that neither the Supreme Court nor the Federalist Society acts in a way consistent with originalism. These views are worth exploring to understand what is really going on. If it’s misogyny and white nationalism, we should call a spade a spade.
This is good (all your stuff is good), but I want to offer one caution. First, a point of agreement. You make an important point that judges aren't purely political actors -- one of the striking things about judicial decision-making is that judges almost always believe, from their own internal perspective, that their decisions are correct applications of the law. It's (almost) never the case that they're rubbing their hands together and saying to themselves, "this decision is legally wrong but advances our political agenda." Otoh, because so much of the judicial decision-making we're looking at is so heavily influenced by a judge's priors and ideology, the outcomes aren't so different from what they would be if the judges *were* purely political actors. (I base this observation on a lot of time spent around judges, including a Supreme Court clerkship, and nearly 40 years as a legal academic.)
The point I want to caution about is that "originalism," as used by FedSoc members or otherwise, is at best a shorthand or synecdoche for a larger complex of conservative legal views and understandings. Callais, for example, isn't an originalist decision, and it doesn't purport to be. My point isn't just that originalism is incoherent and invoked only in the breach (though both of those are true); it's that even from conservative justices' perspectives, originalism just isn't relevant to a lot of important disputes. But there's a lot else in the conservative legal superstructure to help populate conservative justices' internal understanding about what "the law" demands.
Here's an example of one of the ways in which one needs to be careful about this sort of thing: You describe Marty Lederman's brief on the National-Guard deployment issue as "originalist." But there's no constitutional issue in that case. It's true that the brief relies heavily on the legislative history, legislative intent, and historical context of the 1903 statute in question. But relying on legislative history is a classic "liberal" legal methodology. The conservative justices for the most part condemn looking to legislative intent in statutory interpretation; they view that as inconsistent with appropriate "textualism" -- an approach importantly different from the originalism they purport to uphold in constitutional analysis.
So there's a lot going on.
Thanks - have added a qualification in main text. Lederman used to live in our old apartment before us, and we used still occasionally to get mail (otherwise I only know him through online interactions)
The Roberts Court is corrupt. It has cemented and is cementing corruption into our system. Radical right corruption will not pack up and leave on its own. It’s time for the states that are providing the bulk of funding for this corruption to cut off the flow of dollars. No taxation without representation. And, to begin a movement to leave this corrupt union, forming one or more new countries. Difficult? Yes. But, better than living in a polity that exists mainly to make the richer and the poor poorer.
“The Roberts Court is not only presiding over the most spectacularly corrupt government in the history of US politics (itself a remarkable achievement). It is actively enabling it, both through its past jurisprudence and current decisions.”
I think Christopher Armitage (https://substack.com/@chrisarmitage1) has the right idea with "soft secession".
I don't think there is a gradualist, non-political path back from this. If they can get a solid majority of voters to repudiate Trump, Dems need to appoint enough judges to provide a majority pledged reverse every decision brought down by the Repubs since Roberts' appointment. After that, they can do a reform to produce a properly neutral court.
I think I would put it slightly differently. "Purely" is doing a lot of work in Roberts' statement, and it's not just as a qualifier. What it's doing is defining what Roberts thinks politics actually is, which is an instrumental attempt to create outcomes that consciously favor particular interests, structured by an ideology that buttresses such an intent.
What I would say, via the Federalist Society, is that the Supreme Court--and perhaps the American judicial system overall--is that the Supreme Court is political in a *particular* way, and that this particularism matters to both its process and its outcomes. E.g., it matters to Roberts, and perhaps to several other conservatives on the court, that the court nevertheless be a court. That hasn't mattered to Thomas at any time in his work on the court, and it doesn't seem to matter much to Alito. But what has accelerated, via what you accurately call "decadence", is a kind of processual impatience in which the particularity of the way in which the Court does politics is being increasingly dispensed with.
The other thing I'd say is driving at least Alito and Thomas and that Gorsuch and Coney Barrett might not be entirely opposed to (I really don't have a read on Kavanaugh) is an originalism that essentially arrives at its politics by obliterating the text it is set to interpret, e.g., that wants to relocate the determining precedent of American life in a constitutional monarchy, essentially just after the Glorious Revolution--a state with a powerful but not absolutist monarchical executive, a legislative body tightly restricted to major property owners, and with a state religion that tolerated its major theological rival but not other forms of dissenting religion or anti-religious sentiment.
In other words, rewrite the constitution to suit their ideology.
Lenoard Leo has the financial wherewithal to keep the Federalist Society going no matter what. The judges from it, like the Republican party itself, is suffering the fruits of ideological victory, because their sucess is based on corrupting the systems they have gained control of.
Critics of the Supreme Court I've read, like Steve Vladek and Ken White, have forcused more on the way their decisions have been made than the consequences of those decisions, which they are not happy with. The specious reasoning or complete lack of,reasioning is leaving lower courts adrift to read the minds of the Court, who then complain publicly about the lower court's inability to do that. This, like everything else in this administration, is not a stable situation, but it is totally in sync with the Republican party's total dedication to a radical reactionary theory of governance, which boils down to the less the better.
Originalism requires that all laws require a constitutional amendment. A impossible process in these times.
The Federalist Society is a cancer on our legal system, and it's metastasized.
Henry Farrell: Very insightful and worthy commentary on both the Movement sustained by The Federalist Society, the underlying political motivation, and Originalism.
I can understand limiting Government regulation of the free market, in the spirit of 18th c. political economist, David Ricardo, who built a model of perfect competition based upon a society of crafts and small shops.
I can understand the intellectual attraction quite well of looking to: (1) The Constitution; (2) The Federalist; and, (3) William Blackstone.
In this way, a legal scholar might hope to get back to original intent.
I would add, look, too, to the Anti-Federalist deliberations in 1787-1789. The Federalists had to answer apprehensions raised by such as Patrick Henry.
So let me give arguendo the point that such interpretations have legitmacy, scholarly bearing, and tend towards a free market economy.
Arguendo.
I think Alexander Hamilton points towards Abraham Lincoln and FDR.
But I will give these points arguendo.
BUT:
How do we get to John Yoo and torture!
George Washington saw British troops torture captives and decided on acting humanely towards captives.
That is what our Founders thought.
So, what about John Yoo and torture?!
And how do we get from James Madison, Articles I and III, to a unitary Presidency and dictatorial and oppressive powers?!
These points I refuse to give the other side!!
It seems to me this Supreme Court (specifically the Gang of Six Rubber Stamp Committee) makes a "decision", then works backwards from there to arrive at a "justification". Unless it's done from the shadow docket, in which case no justification is needed.
Winston Smith London Oceania: You hit the nail on the head.
Unfortunately.
You state the matter quite well.
God bless you, dear friend.
Federalist Society = Ivy League National Rifle Association
Thank you for this. Prof Solum at UVa argues that neither the Supreme Court nor the Federalist Society acts in a way consistent with originalism. These views are worth exploring to understand what is really going on. If it’s misogyny and white nationalism, we should call a spade a spade.
The self-evident give-away about originalism is how little it incorporates the values of the Declaration.
FYI — Hollis-Brusky’s book is titled “Ideas With Consequences.” “Ideas Have Consequences” is the title of the Weaver book.
They are but a tentacle of the Koch Network.