“Originalism” has always been a mask for blatantly political right-wing decisions. It’s time to rip off the mask
Last week's historic Senate Judiciary Committee hearing featuring Dr. Christine Blasey Ford and Supreme Court nominee Brett Kavanaugh was primarily about sexual violence and accountability. But it was also about lies, and those issues are inextricably linked at many levels.
“What we saw this week was Lindsey Graham and Chuck Grassley and Orrin Hatch trying to build the Me Too firewall," Above the Law editor Elie Mystal said on MSNBC Saturday. "There are 18 archconservative judges waiting for Kavanaugh's job. They grow these people on trees. They could pick another guy. But they don't want another guy. That's because the sexual assault allegations against Brett Kavanaugh are a feature for them, not a bug. They want to prove that they can shove this guy through and tell women to shut up." Exactly the same argument was made by Salon's Amanda Marcotte last week.
That much is painfully obvious. (Rape is about power, not sex. So too Supreme Court nominations.) But the role of lies is far more diffuse and various, ultimately reaching to the very heart of our judicial system and to the Supreme Court, to which Kavanaugh aspires. The lies Kavanaugh told are a useful reminder of how far from the truth we are as a nation.
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Sometimes Kavanaugh’s lies to the Senate Judiciary Committee were ludicrous. Sen. Sheldon Whitehouse, D-R.I., called some of them called out.
"I don't believe 'boof' is flatulence, I don't believe a 'devil's triangle' is a drinking game, and I don't believe calling yourself a girl's 'alumnius' is being her friend,” Whitehouse said, regarding a just few of the countless lies, half-truths and bad-faith evasions Kavanaugh produced.
More often Kavanaugh’s lies pretended to common sense status.
Seven times he claimed that all four purported witnesses said “it didn’t happen,” with regard to his alleged assault of Ford in the summer of 1982. That's not true. Three times he specifically included Leland Keyser, Ford's friend, and that's also false. As Sen. Cory Booker, D-N.J., reminded him, Keyser has said "she does not remember the night in question. … But she also says that she believes Dr. Ford.”
From a bird's-eye view, Vox shows how insistently evasive Kavanaugh was, in stark contrast to Ford’s forthrightness.
But the multiplying questions about Kavanaugh's honesty — along with his possible history of sexual abuse — and the honesty of those so eager or so desperate to get him on the court -- are symptomatic of a much larger problem. The position of the Supreme Court in American political culture is inherently deceptive and dishonest, pretending to a higher wisdom that it utterly lacks.
“When nine such people are not constrained by prior cases or any higher court, and need at least five votes to produce an outcome, it is not surprising that their decisions resemble the work of a political veto council much more than a court of law.” That’s the argument made by Georgia State University law professor Eric Segall in his 2012 book “Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges,” an argument he advances in even sharper form in his new book, “Originalism as Faith,” which picks apart the most widespread form of deception in which the high court has been cloaked.
“I think I’m considered about as extreme a critic of the Supreme Court as there is,” Segall told Salon. Nonetheless, he’s been remarkably successful at advancing his ideas. One proposed fix Segall advanced in 2012 was to introduce 18-year term limits for Supreme Court justices in place of lifetime tenure.
“When I wrote that book, it was a minority view. Today it's the majority view,” Segall said. “They played a clip of me on John Oliver two weeks ago from CNN talking about that,” he said. We’re the only country in the world that lets Supreme Court justices serve till they die — a major facet of how unconstrained the Court is. Oliver found that strange.
“Lifetime appointment to the highest court is one those things that is uniquely American,” Oliver said. “Like the Super Bowl. Or drinking Budweiser. Or tolerating Sean Penn. No one else understands why Americans do those things. And if you think about it, it is a little weird.”
“Now, that doesn't mean this can happen,” Segall said. “But it's come a long way. ... I don’t have to do much to prove the following rule that every democracy in the world except ours follows: Never give a government official unreviewable power for life. Just don't do that. Psychologically, it's just too hard, too much. They'll end up seeing what they think is right as what the law requires.”
This is a common thread that ties Segall's two books together. Anyone in that situation -- a lifetime appointment -- would tend to succumb, but originalism is an especially deceptive “just-so story” that only makes that tendency worse. It meets a lot of psychological needs, in Segall's view, not just for judges, but for the broader public as well.
“When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions,” Segall writes in “Originalism as Faith.”
“In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.”
But originalism simply doesn’t work. It can’t work as advertised, because the constitutional text isn’t clear enough, and therefore it doesn’t work in fact. Nor does any other supposedly nonpolitical interpretative approach, however. In “Supreme Myths,” Segall describes the post-Civil War "legal tender" cases, in which the court first ruled paper money unconstitutional, but reversed itself just 15 months later, after two new justices joined the court. “The new majority pointed to no new facts or arguments supporting its reversal of the prior decision,” Segall writes.
Originalism may be the most popular mask for political decisions, but it’s not the only one. Still, it’s the most potent, and the most dangerous. “Virtually every constitutional law case" decided by the Supreme Court, Segall told Salon, "involves text that is imprecise, unclear, vague – equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don't necessarily assume.” The result we have now is a bastardized legal philosophy of “new originalism” that claims to respect the original text while doing no such thing.
“The main argument in my new book is that originalism doesn't do anything," Segall said. "It's never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they're doing what they're doing — for transparency purposes.”
That’s not impossible, he said. “I think Justice [Anthony] Kennedy was great at that. You know, Justice Kennedy told us — in term limits, in the gay rights cases — he told his confirmation hearing what he felt. Whether you hate [his decisions] or love them, and I hate a lot of his votes, he was our most honest justice. … I wish the other justices on the Supreme Court would talk that way.”
“When the Justices give meaning to phrases like equal protection of the law and due process of law, they are employing their own ideas of right and wrong formed by personal life experiences, not interpreting prior law,” Segall wrote in “Supreme Myths.” But because they do this dishonestly, in his view — at best, lying to themselves more than anyone else — they make it impossible to engage with one another directly in an honest attempt to reach decisions that reflect the broader common wisdom of the age.
In between the two books, Segall put forth the idea of mandating partisan balance on the court. In his paper “Eight Justices Are Enough,” Segall pointed out that with Justice Antonin Scalia’s death and Senate Majority Leader Mitch McConnell’s refusal to consider anyone Barack Obama might appoint, the result was “an evenly balanced Supreme Court among liberals and conservatives, Republicans and Democrats, for the first time in our nation’s history.” Most commentators saw this as problematic — if not because of McConnell’s extreme norm violations, then because of the 4-4 gridlock problem. Segall saw things differently:
This paper’s thesis is that Congress should enact laws and procedures to make permanent an even-numbered Supreme Court with four Republicans and four Democrats. This structural change could significantly change how the Justices decide cases as well as improve our broken confirmation process. …
A permanent evenly divided Supreme Court along partisan and liberal/conservative lines would result in narrower, more consensus, and bi-partisan decision-making, reduce the opportunities for five or more Justices to impose rigid ideological agendas over long periods of time, and improve the irrational procedures we now use to select the Justices. Under our current system, the political make-up of our highest Court is largely the result of death and sickness or even worse strategically timed or ill-timed retirements.
I’m not convinced that this is the right solution. Republicans have lost the national popular vote in six of the last seven presidential elections, yet now control a majority of seats on the Supreme Court. But at least this proposal gets us engaged with some of the most important questions and problems that have been avoided for too long.
Conservatives initially advanced originalism as a means for justifying striking down liberal laws passed in the New Deal and Great Society eras, along with their progeny, and reversing Supreme Court decisions by justices appointed during that period. It was a way of making an ideological package of generally anti-majoritarian ideas seem not merely legitimate, but unquestionably correct. That charade can no longer be maintained as the court diverges ever farther from the popular will and the raw power politics become increasingly transparent. The Kavanaugh hearings epitomize everything that can no longer be hidden.
In an author’s note at the beginning of “Originalism as Faith,” Segall discusses the Supreme Court's decision in Janus v. AFSCME, handed down just before his publication date:
In this decision, five conservative Justices invalidated (on free speech grounds) the laws of twenty-three states requiring public employees to pay partial union dues whether or not they joined the union. The Justices engaged in this aggressive act of judicial review by overturning a unanimous 1977 Supreme Court decision that held exactly the opposite and without any support in the original meaning of the First Amendment. Justices Thomas and Gorsuch, the two self-avowed Originalists on the Court, joined the opinion in full without comment. This brand new case perfectly reflects this book’s thesis: Originalism is a method of constitutional interpretation that is nothing more than a misleading label for conservative results for some (the Justices) and an article of faith for others including many legal scholars and the public at large.
The Janus decision is no anomaly. With Kavanaugh on the court, or any other justice hand-picked for Donald Trump by the Federalist Society, a similar fate awaits Roe v. Wade. American women understand this, just as they understand how hard Republicans worked to silence Christine Blasey Ford and rush Kavanaugh onto the bench. Roe may be overturned all at once, or (more likely) die a death of a thousand cuts, even though it enjoys public support by more than a two-to-one margin.
Those who destroy women's reproductive rights will surely use the pretense originalism to cloak what they do. That's why progressives of all stripes need to take this fight as seriously as conservatives have for the past 40-plus years. If we don’t fight for a better understanding of the meaning, purpose and function of the Supreme Court, we are certain to lose.
We also need to know what we’re fighting for — a demystified Supreme Court that reflects the best of our evolving common wisdom, and doesn’t try to overrule the majority of the American people without unmistakably clear constitutional language to support it. Unfortunately, we're not in a position to make that happen right now, and the process cannot begin in earnest until January 2021 at the earliest. But knowing what we’re fighting for is key to winning.