The end of something

A few thoughts on where we go from here.

(1) It’s been increasingly evident for decades now that the SCOTUS as it’s currently constituted is an absurd institution.  In a constitutional republic that features both a 230-year old constitution that is almost impossible to amend, and a judiciary that has arrogated to itself the final word on “interpreting” that document, the supreme court cannot possibly avoid becoming a kind of quasi-legislature.

The “originalist” arguments favored by Federalist Society reactionaries are a phony solution to this problem, for at least two reasons. (I’m assuming for the purposes of argument that originalism is a sincere attempt to instantiate an interpretive methodology, as opposed to an empty rhetorical gesture, made as convenient).

First, in a legal system featuring any concept of precedent, precedent must inevitably compete with and eventually overwhelm original meaning.  For example, when lawyers talk about the Statute of Frauds, they are no longer in any meaningful sense referring to a law passed by the English parliament in 1677, but rather to an immense body of judicially-created precedent.

Since literally everyone who has any power in the American legal system agrees that constitutional law includes judicial precedent, even when that precedent deviates from original constitutional meaning, citing original constitutional meaning — again, assuming arguendo that this concept makes sense — as the source of constitutional law is wrong, as both a normative and descriptive matter.

Second, even if we ignore this inconvenient fact, the fact that lots of recognized authorities within the system aren’t even putative originalists means that citing originalism as the correct approach to constitutional interpretation is simply question begging.  Or to put it another way, it’s a normative rather an a formal claim, and therefore must be defended as a controversial political position, as opposed to a formal description of a practice.

In short, in a system like ours, the Supreme Court is and indeed must be a sort of specialized legislative body.  Given this, a body made up of a total of nine life-tenured individuals, who come onto and –especially — leave the court at largely random times, is indefensible.  It’s even less defensible now that we’ve apparently decided that America’s other federal legislature should be made up exclusively of people who matriculated at two law schools.

“Court packing,” which until about fifteen minutes ago was considered an unthinkably radical scheme, is actually a perfectly rational and defensible response to this utterly absurd situation.  The Supreme Court needs to be reconstituted into a democratically-accountable and democratically representative body.  If court packing is part and prelude to that process, then the sooner the better.

(2) Under anything like current political conditions, it makes no more sense for a Democrat in the Senate to vote for any Republican SCOTUS nominee than it does for that senator to vote for a typical piece of Republican plutocratic legislation.  (The only exception to this rule is for senators who sincerely believe they need to defect to get re-elected.  Lesser evil logic applies here).  And of course the converse holds as well.    Obviously this makes the institutional status quo unsustainable.

(3) One possible silver lining of the Kavanaugh fiasco is that it will play a part in exploding the utterly phony idea that people get onto the Supreme Court through some process that can be even loosely described as meritocratic.  The “liberal” denizens of Yale Law School who disgraced themselves in this process inadvertently helped tear the curtain away from the Mighty Oz residing in New Haven and environs.  They shouldn’t be allowed to forget it.