WaPo commissions random hack to talk to you like you’re an idiot
By LOL come on:
Is this a joke? Sadly, no:
With the end of the Supreme Court’s term, Democrats are denouncing the court as ideologically motivated, extreme, undemocratic, even destabilizing. Their angst is understandable, but it’s misguided.
It’s understandable because, until recently, progressives were able to rely on the court to achieve or ratify many of their most important policy goals.
The last time the Supreme Court had a liberal median vote was 1970. The claim that it’s liberals who rely on the Court to achieve their policy objectives is more obsolete than the pet rock.
It’s misguided for at least two reasons. First, this court is not ideologically motivated — that is, committed to conservative outcomes. It is committed to a textualist approach that sometimes will produce outcomes that political conservatives cheer and sometimes will infuriate them.
Before we go on here, we should note that the idea that “textualism” can be a usable theory of constitutional interpretation is ridiculous on its face even before we get to the countless conservative Roberts Court holdings that have no discernible basis in the text of the Constitution. Ok, having consulted the text I can see that “cruel and unusual” punishments are illegal, so now what?
Second, Democratic warnings of a constitutional apocalypse — with the court supposedly poised to strip away Americans’ rights to contraception (Griswold v. Connecticut), homosexual sex (Lawrence v. Texas), same-sex marriage (Obergefell v. Hodges) and other rights not explicitly mentioned in the Constitution — are overblown. The court is not inclined to do any such thing.
This Court is very Highly Principled, and so we know that when Alito said that several cases had no basis in the text of the Constitution he would never actually apply this logic in any future case going forward. And we know that he would never apply his own reasoning to any future case because [“Yakety Sax” starts playing on random loop.]
Any impression that conservatives could rely on this court for conservative outcomes was dispelled on the final day of the term. The court upheld the Biden administration’s repeal of President Trump’s “Remain in Mexico” policy. It also declined to review New York state’s vaccine mandate for health-care workers, which lacks a religious exemption.
The metric being used here is that the Court is not conservative if it does not reach the most conservative outcome in literally every case. That’s the argument.
These mixed results are best understood by recognizing that this court is reliably conservative in the jurisprudential sense, rather than the ideological sense. That is, the majority — rather than pursuing a conservative policy agenda — is focusing on the text and intent of statutes and the Constitution, in contrast to the more flexible “living Constitution” approach popular on the left. While that often results in decisions that please conservatives, this court is not afraid to rule otherwise when that’s where textualism — or originalism, as many call it — leads.
The use of “textualism” and “originalism” interchangeably is appropriate, because especially as “applied” by judges neither of them is any kind of actual theory of interpretation. It’s all just William Rehnquist’s definition of “strict constructionism” with a new label for the rubes every few years.
Textualism easily explains the court’s other conservative decisions this term as well. The Second Amendment explicitly guarantees “the right of the people to keep and bear Arms.” Likewise, the court’s decisions on religion and the administrative state are firmly grounded in the text and intent of the First Amendment and the Constitution’s placement of lawmaking authority in the hands of Congress.
The isolated phrase misleading plucked from the Second Amendment does not, as it happens, say that almost anyone has the right to carry a firearm anywhere they want, so as an argument that a the specific gun regulation New York enacted more than a century ago is not in fact “deeply rooted” in the nation’s tradition it’s neither here nor there. Since I’m not a member of the Federalist Society my copy of the Constitution still has an Establishment Clause in it, and you can tell how “textualist” the Court’s holding was by the fact that the majority had to tell bald-faced lies about the facts of the case. And it doesn’t get much more TEXTUALIST to ignore the plain text of a congressional statute authorizing executive action because of the [check notes] “major questions doctrine.”
The parade of horribles trumpeted on the left assumes that the Dobbs majority has a hidden agenda to overturn other unenumerated rights. But there is no secret agenda. The conservative legal movement has been shouting for 40 years that Roe should be overruled. There are few if any voices in that movement calling to overrule Griswold, Lawrence or even the more recent Obergefell decision.
Those three decisions resulted in or from profound changes in our culture and in popular opinion. Roe never stuck in the same way. Regardless of what the court says about Griswold and Lawrence, the democratic process would prevent any state from outlawing contraception or homosexual sex. Bans on either have moved outside the Overton window, and prohibition of same-sex marriage is quickly moving in that direction.
Shorter #1: “The Court is never political and never does things because conservative activists want them. Also, it is political and does what conservative activists want, and this is a good thing. Also, the Court would never overrule a popular precedent — if a case, like Roe v. Wade, is supported by 2-to-1 majorities it is completely safe, and…wait, I’ll come in again.”
Shorter #2: “This Court, being principled textualists, would never follow the logic of their own rulings. But even if they did, Republican legislatures and executives would never dream of doing what they’re already doing.”
Why on Earth would you publish this intelligence-insulting crap? I know, but still.
[H/T Nexon, and yes he owes me one.]