How a Radical Ideology Infected the Supreme Court and Poisoned the Country

Yahoo

2 days ago

An obscure ideology most people have never heard of is dominating almost every aspect of American life. Nearly every important Supreme Court ruling by the conservative majority — from abortion to voting rights, from gun control to environmental protection — virtually the whole far-right agenda — has been foisted on the nation using this ideology as its justification. 'Originalism' is not a household word. Yet is in an extremely important word — the key to the political movement that has transformed the country over the last forty years and culminated in the regime of Donald Trump.
Originalism's influence, once confined to the nation's law schools, is now vast, reaching far beyond the Supreme Court majority's politicized rulings. First and foremost, originalists — yes, they call themselves that —provide the intellectual underpinning for Trump's 'emergencies,' his lawless assault on law firms, universities, the Smithsonian, the Library of Congress, the Voice of America, indeed, the entire civil service. The grand alibi comes in the form of what the originalists present as the doctrine of 'unitary executive,' a contrived theory of their own making that they pass off as something the Framers inscribed in the Constitution.
In justifying Trump issuing executive orders as though they were dictatorial decrees, the theory denies innumerable vital federal agencies and institutions the slightest independence. Most recently, on May 22, the Supreme Court moved to the brink of destroying that independence, trashing an 80-year old precedent in a preliminary ruling on the longstanding Humphrey's Executor, and allowing the president more power to remove officials from independent organizations, and cloaking the pre-determined result in flimsy originalist explanations. As the 'unitary executive,' Trump can threaten to place the Federal Reserve under his heel, which would likely trigger a worldwide Depression. The high court itself exposes originalism as the expedient fraud that it has always been. Left unchecked, originalism can be wielded as a tool to tear apart American democracy and menace the global economy.
Confusion surrounds originalism partly because it flies under many aliases, including 'textualism,' 'original meaning,' and 'history and tradition.' Until recently, even the most influential elites in the legal establishment have had difficulty grasping the shifty, esoteric jurisprudence that has no particular historical claim to legitimacy but that now rules the federal judiciary.
Yet originalism does have a history. For decades, a dedicated and staggeringly well-funded movement of plutocrats and their right-wing allies has worked through shadow networks to capture and politicize the courts. How much money? Probably more than $2 billion. According to Senator Sheldon Whitehouse (D-R.I.) this operation spent $34 million in its campaigns against President Barack Obama's choice for the Supreme Court, Merrick Garland, and to install Neil Gorsuch and Brett Kavanaugh on the court. That's been money well-spent in the right-wing's dark money operation. It's won victory after victory in the courts, in every domain of law — from gun rights to abortion to environmental law and beyond. Originalism is the phony doctrine they invented to justify their rulings, confuse their opponents, and impose their political agenda.
So-called originalists like to pontificate with lofty pronouncements about what the Founders would have wanted — as though the Founders were unified in their vision, and as if that vision could be unequivocally divined from a vantage point 250 years later, from sparse documentary evidence by ideologues who cook the history books. And the Christian Nationalist wing of the originalists absurdly claim that the Founders intended to create a Christian nation, as though Thomas Jefferson and James Madison never spoke about the separation of church and state.
The originalists claim that they are serving a truly impartial jurisprudence, merely calling 'balls and strikes,' in Chief Justice John Roberts' phrase, based on a literal meaning of the Constitution. In fact, the record shows, glaringly, that the originalists work backwards from their goals to find the magic words to cloak their extremism. Facts and precedent be damned. Originalists bully their way forward using distorted and outright fabricated history, figuring that no one will call them out.
In short: Originalism is a dangerous fraud.
Whatever its claims to historical grounding and omniscience, originalism is a comparatively new invention as an ideology. It was born as a direct political response to the Supreme Court's landmark 1954 ruling, Brown v. Board of Education, declaring segregation in public schools to be unconstitutional.
Brown was an affront not just to Jim Crow southerners but to the broader conservative movement, exemplified by William F. Buckley Jr.'s then new magazine, National Review. The backlash drew from old ideas from before the Civil War in defense of slavery about states' rights, to stop the implementation of federal laws, including equal justice under the law and especially voting rights, and, more boldly, to declare those laws unconstitutional. It's a direct route from the segregationists' arguments against civil rights to Chief Justice John Roberts' ruling in 2013 eviscerating the Voting Rights Act of 1965. That may be the only true originalism.
It's important to note that this reactionary movement was not confined to the political fringe. The spirit of constitutional originalism had existed, for many years, focused mainly on opposing the reforms of the New Deal. Having switched to responding to desegregation, the movement conservatives suddenly had to obfuscate the racist core of their position. Hiding their bigotry in the folds of history, they embarked on the project of supposedly discovering the original intent of the 14th Amendment, trying to show that its guarantee of equal protection under the law was irrelevant to securing civil rights for Black schoolchildren and their parents.
To undermine Brown, conservatives hit upon a slogan they dressed up as a judicial principle: 'intent construct.' That was the first definition of what became originalism. To distract from the racist foundations of their resistance, they tried to shift attention from existing injustice to what the framers of the Constitution supposedly intended — the intent construct. As a leading pro-segregation journalist James J. Kilpatrick wrote: 'In constitutional cases, the clock must always be turned back.' He was whistling 'Dixie' or humming 'Carry Me Back to Old Virginny.' Glossed over, of course, was the fact that 'intent construct' meant that the conservatives on the bench would construct the framers' intent, sometimes out of thin air.
With the seed planted against desegregation, the conservative movement — including William F. Buckley's National Review, Barry Goldwater, and Ronald Reagan — nurtured and grew the project of what would became known as originalism.
The most important figure in defining originalism was Robert Bork, who as Richard Nixon's acting Attorney General tried to suppress the Watergate investigation in the notorious Saturday Night Massacre in which, on President Nixon's order, he fired the special prosecutor in 1973. Bork had proposed, two years earlier, what would become an influential outline of originalism in an article for the Yale Law Journal. He argued that judges should be able to discover what the framers 'actually intended' from 'text or history,' without inserting their own interpretation. Funnily enough, in Bork's originalism, the Framers always supported what the contemporary right-wing wanted at any given moment.
When President Reagan nominated Bork to the Supreme Court in 1987, the Senate rejected him as too extreme. Yet if Bork's nomination failed, the ideas he propagated had already gained momentum. (The fight over Bork's botched nomination gave birth to a new verb — 'borked' — which has been used to describe every failed nomination since and marked the beginning of vicious partisan fighting over Supreme Court seats.)
In 1985, President Reagan's Attorney-General Edwin Meese — soon to be disgraced in a financial scandal and forced to leave office — addressed the American Bar Association, professing that the 'intended role' of the judiciary was to serve as 'bulwarks of a limited constitution.' Judges and justices, he argued, should be expected to 'resist any political effort to depart from the literal provisions' of the Constitution and 'press for a Jurisprudence of Original Intention.' Meese and the originalists concealed that 'Original Intention' meant intention as construed by themselves, the originalists.
What these ideological inventors left unstated was the inconvenient fact that the Framers themselves believed that the Constitution's words should not become a kind of scripture but instead serve as the basis for guarding freedom and rights while pursuing the general welfare, evolving along with the nation. The Framers endlessly disparaged the idea of an unchangeable fundamentalist text. 'In framing a system which we wish to last for ages, we should not lose sight of the changes that ages will produce,' James Madison said during the Constitutional Convention. In a debate in the House of Representatives, on April 6, 1796, Madison declared, '…whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.' But the originalists ignore the practical sense of the Framers as they claim to conduct seances hearing their true voices from the beyond.
Antonin Scalia, appointed by Reagan to the Supreme Court in 1986, became originalism's most visible and vocal proponent on the court. Originalism also became the creed of the Federalist Society, an organization of conservative academics that morphed into a hugely influential elite right-wing legal and political operation, grooming hundreds of lawyers for appointment to the federal bench, a vast machinery to take over the judiciary and the law financed by the many millions of dollars gathered and administered by the reactionary theocrat Leonard Leo, who assumed control of a $1.6 billion slush fund in recent years. Although originalism was then a newly minted concept, which would have been inconceivable to the Founders, within 15 years it had managed to seize the political high ground and masquerade as history.
In 2000, in one of the crudest but most consequential maneuvers in American history, Scalia led a conservative majority on the court, in a 5-4 decision, to hand the presidency to the Republican candidate, George W. Bush, by stopping the counting of thousands of ballots in the Florida contest. Scalia, in a bit of originalist jiu-jitsu, flipped the 14th Amendment's 'equal protection' clause to declare Bush the winner — a ruling Scalia reportedly confessed in private later was 'as we say in Brooklyn, a piece of shit.'
The basic conceits of originalism are deceptively simple: The meaning of the Constitutional text was fixed, knowable, and unambiguous at the time it was written; and that this meaning should govern for all time. To these absurd presumptions the originalists add one more: that only originalists can dictate the law.
The real trick for them is to find language that is roomy enough to embrace their pre-arranged goals but also narrow enough to avoid sounding obviously contrived. Contrary to the humbug of what originalists would have you believe, the Founders did not have a unified vision. Madison believed that even the meaning of words in the Constitution acquired different definitions over time. 'What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense,' he stated in 1824.
But it's easy enough to manipulate historical sounding language into a single, clear-cut 'original' meaning and then arrive at an interpretation of that meaning that justifies the desired conclusions. Intended to have a gravity not unlike fundamentalist Biblical exegesis, it more closely resembles three-card monte.
Such historical distortion and falsehoods, for example, form the cornerstone of the court's decision in Dobbs v. Jackson Women's Health Organization, the case that overturned Roe v. Wade and eliminated federal protections for abortion rights.
Among the central assertions in that decision, written by Justice Samuel Alito, concerned what Alito called a 'most important historical fact' — that 28 out of 37 states banned abortion throughout pregnancy at the time of the ratification of the 14th Amendment (the basis for Roe) in 1868. Historians quickly noted that Alito's claim was spurious: At least seven of the 28 states he claimed had completely banned all forms of abortion actually permitted them in some form. Roe finally fell in 2022, a victim of bad faith 'originalist' history, and women were deprived of a basic right to reproductive freedom and health.
Alito is not alone on the Supreme Court bench in warping the historical record. At this point, one critic observes, 'distorting the past to further his ideological agenda has become a trademark feature' of Justice Clarence Thomas. Thomas' majority decision in New York State Rifle & Pistol Association v. Bruen, struck down a New York law that required persons to obtain an unrestricted license to carry a concealed firearm. The defense, along with amicus curiae briefs, cited numerous Reconstruction-era gun regulations as precedents for the restriction law. Thomas dismissed these as 'outliers' and placed far greater weight on how, he said, English peasants during the 1500s carried guns. Now, English highwaymen of the 16th century were as good as the Framers for originalist precedent.
Thomas' decision rested on Scalia's originalist formulation in District of Columbia v. Heller, in 2008, in which he extended the Second Amendment, applying to members of militias (today's National Guard), to an unqualified right for gun ownership for every individual. Thomas, however, took originalism beyond any hitherto limits, claiming that any and all gun control had to be able to cite an analogy to a regulation on an originalist basis to be valid.
In 303 Creative LLC v. Elenis, the Supreme Court showed just how far it is willing to go in ignoring the facts by fabricating the recent past as well as history. The majority ruling, written by Justice Gorsuch, held that a wedding website designer was entitled to discriminate against a gay couple because the Colorado law which prohibited her from doing so violated her First Amendment rights. The entire case was a scam. One day before the court's opinion was published, The New Republic reported that the facts had been fabricated. The designer had never been asked to make a 'gay' cake; the religious right had engineered the complaint in order to bring a test case to the Supreme Court. Gorsuch's ruling, meanwhile rested on another assertion of false history: that religious speech has always occupied an unimpeachably privileged position in American law. With that, he stomped on the principle of the separation of church and state fervently advocated by Thomas Jefferson and James Madison, and which is enshrined in the Constitution's 'establishment clause' prohibiting government support for religion of any sort.
Originalism has succeeded in insinuating itself into law and politics at every level. It has featured in every Republican Party platform from 1992 to 2016, except in 2004. At least five of the nine Supreme Court justices explicitly espouse it, and the rest are required to engage it as legitimate legal theory. It has taken hold everywhere from the Courts of Appeal to state courts through appointments of right-wing judges.
By now, any U.S. citizen engaged in civic life knows about Project 2025. Despite Trump's ludicrous protest that he was not involved with the project and knew nothing about it, many of the major policies it describes have either been implemented already by the Trump regime since January or are in the pipeline. Many of the contributing authors of Project 2025 are originalists. The fingerprints of originalism are everywhere in this plan, which makes sense: Project 2025 aims to remake the whole of American law, politics, and social life in a radical right-wing mold.
Originalism doesn't do what it claims to do, and some judges try to fight it on its own terms. Judge Beryl Howell, the chief judge on the federal D.C. Circuit recently used originalist reasoning to hold that the Trump administration's unitary executive theory is invalid — pitting originalism ironically against originalism. She wrote that 'the Framers made clear that no one in our system of government was meant to be king — the President included — and not just in name only.' And yet Trump insists he can be a dictator. His originalist ideologues bestow on him vast and unchecked powers, the unitary executive.
To help cut through the fog of originalist propaganda, too often taken at face value in news reporting and public debate, we established in 2023 what we call the Court of History, appealing to what is, after all, the highest court of all. We have exposed the originalist fraud, through news articles, webinars, and conferences. We have revealed the insidious use of this concocted doctrine to justify a far-right agenda. And we have unmasked the underlying theocratic movement of Christian Nationalism to leverage originalism for its cultish ambitions. Since the 2024 election, we have expanded our mission to address the illegalities and unconstitutional outrages of the Trump regime; and we have extended our reach to become a podcast on the Legal AF network. We believe that the beginning of the defense of American democracy is to explain fearlessly the Trump regime's catastrophic assault on constitutional rights, the rule of law, and a government that serves the people. It will take much more work before the curse of originalism is dispelled.
Starting in the farther fringes of the segregated South and right-wing radicalism, originalism is at the center of the conservative project. Far from an abstract game of legal reasoning, originalism has real and devastating consequences. Donald Trump has become the essential implementer of their gameplan to force through Project 2025 and pack the courts with originalist judges. But as the nation approaches the 250th anniversary of the American Revolution, we can only wonder what bizarre twisting of history the originalists will invent to justify a tyrannical regime.
Sean Wilentz, the author of, among many books, The Rise of American Democracy, teaches at Princeton and is a regular contributor to Rolling Stone.
Sidney Blumenthal, a former White House advisor to president Bill Clinton, is a journalist and historian and the author of a continuing biography of Abraham Lincoln.
Ray Johns contributed researched to this article.
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