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The Right-Wing Plan To Rig SCOTUS

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We used to pretend that there was a bipartisan understanding that we would put reasonably independent people on the Supreme Court. Long after that became a obvious lie, nominees would pretend they cared about independence, and assert their neutrality. Remember the smarmy testimony of John Roberts at his confirmation hearing in 2005:

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

Those words are a sour joke now, but at the time most people at least pretended to believe them, and to believe that Roberts meant them. The questioning of Judge Ketanji Brown Jackson and the anticipated vote on her confirmation make it obvious that the Republicans aren’t even pretending now. Senator Ben Sasse, R-Neb., explained why he won’t vote to confirm Judge Jackson.

“Judge Jackson is an extraordinary person with an extraordinary American story,” Sasse said in a statement. “We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation.

“Judge Jackson has impeccable credentials and a deep knowledge of the law, but at every turn this week she not only refused to claim originalism as her judicial philosophy, she refused to claim any judicial philosophy at all. Although she explained originalism and textualism in some detail to the committee, Judge Jackson refused to embrace them or any other precise system of limits on the judicial role,” the lawmaker said.

Sasse is blowing smoke. Judge Jackson has a judicial philosophy, and she explained it in her opening statement.

I have been a judge for nearly a decade now, and I take that responsibility and my duty to be independent very seriously. I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath.

Judge Jackson said she uses both originalism and textualism as helpful tools in making decisions, along with other tools developed over the past 230 years. But that’s not what Republicans want. They want assurances that they will win, and the code words are “originalism” and “textualism”.

Jack Balkin, a long-time law professor at Yale, wrote a short history of originalism and textualism. He explains that in the early 1970s, conservatives were looking for a judicial theory that would enable them to roll back the gains made by individuals and government in the Courts, and for ways to use courts to stall and kill government regulation of corporations and rich people. These two theories were created for the task. They are relentlessly pushed by right-wing rich people through their pet project, the Federalist Society and through support for conservative law professors.

Originalism is the idea that the Constitution should be construed in accordance with the public meaning of the words used at the time it was adopted. As a theory, it relies on the idea that SCOTUS can figure out what that public meaning was.

Textualism is the idea that statutes and the Constitution should be interpreted by reference solely to the words on the page, without regard to anything else. The goals of the legislation, the context, legislative history, none of it is relevant. Textualism relies on the idea that a legislature chooses every word in a law intentionally, that each word has only one meaning for purposes of the law, and that a judge can determine that meaning simply by reading the words maybe with the help of a dictionary.

There’s a germ of wisdom here. Some Constitutional language is capable of exactly one interpretation. Thus, the requirement that a person elected to the House have attained the age of 25 years when elected is capable of only one interpretation, as long as we agree that the election happens on the date of the election, and not the date when the vote is counted and certified under applicable state law.

No one really believes that there is a single fixed meaning to the words legislators use, or that they carefully picked every word, and no one really believes that every word of the Constitution was chosen to express some fixed idea. Let’s try some examples.

The Eighth Amendment prohibits Cruel and Unusual Punishments. SCOTUS recenetly ruled that the death penalty cannot be imposed for rape, but that was allowed for centuries. Does that mean that originalists and textualists would overturn Coker v. Georgia?

The Tenth Amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There were no abortion laws in the US in 1791. Does that mean the matter is reserved to the people? Or to the states? How do you know which? Was there a Public Meaning of the words in the Tenth Amendment that would shed light on this question? Can you tell from the words?

Conservatives said that these two constructs, originalism and textualism, were neutral, and would constrain courts. That’s not what happened. In practice, textualism and originalism produced results in accordance with conservative demands in most cases. This essay lays out the evidence with links.

Lately there’s been concern among religious conservatives as to whether originalism and textualism are enough to get their way in full. Bostock v. Clayton County considered whether The Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of “sex”, applied to gay and transgender people. J. Gorsuch held that it did on textualist grounds. J. Alito dissented on originalist grounds. The uproar that followed among the political Christians revealed the true focus of these two constructs: to use the courts to impose political preferences on a majority that has moved on.

Consider, as Professor Balkin does, the work of Adrian Vermuele, a Harvard professor and Catholic. Vermuele agrees with Balkin’s analysis of the history of originalism and textualism, but goes farther.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.

For the right-wing it isn’t enough that a judge is fully qualified. They will only confirm nominees who will vote for conservative positions regardless of law or precedent or good sense. Republicans are the right-wing party. They want to rig SCOTUS.

Derrick Bell’s Parable Of Afrolantica

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Introduction And Posts In This Series

Chapter 3 of Derrick Bell’s Faces At The Bottom Of The Well tells the parable of Afrolantica. Out in the Atlantic Ocean a new continent suddenly begins to emerge from the water 900 miles off the coast of South Carolina. Months later when it emerges from the boiling waters and steam that surrounded its birth, it is revealed as a land mass the size of the New England States, with mountains, forests, rivers, and meadows; with plants, animals, fish; and with a whole lot of gold and silver. Nations vie for control, but the US gets a head start and tries to put people there. They are immediately sickened by a strange heavy air pressure which they cannot breathe.

It turns out that only American Black people, and not even Black people from other nations, could breathe the air just fine. A group of Black explorers reported:

… they needed neither their space suits nor special breathing equipment. In fact, the party felt exhilarated and euphoric—feelings they explained upon their reluctant return … as unlike any alcohol- or drug-induced sensations of escape. Rather, it was an invigorating experience of heightened self-esteem, of liberation, of waking up. All four agreed that, while exploring what the media were now referring to as “Afrolantica,” they felt free.

Black people begin to think of Afrolantica as the Promised Land. One minister likened it to the story of the Israelites in the land of Egypt. The Israelites, emancipated from Egyptian slavery, wandered in the wilderness for 40 years. Black people lived this for hundreds of years. He urged Black people to emigrate to this Promised Land.

The arguments began. Some Black people, Remainers, argued that life in the US wasn’t as bad as the Israelite had it in their 40 years. They said Black people of today were better off than their parents and grandparents. This is our land, they said, and we don’t want to leave.

A pro-emigration group introduced a bill in Congress to give each emigrant $20K to cover expenses and start-up costs, to be repaid if the emigrant returned within 10 years. Opponents attacked it as unconstitutional because it created a race-based benefit without showing a compelling state interest as a justification.

The Remainers argued that things were definitely getting better and it would be dumb to leave just as the dream of equality was in sight. The pro-emigration people, Leavers, pointed out that the dream always favored white people, and was always hedged for Black people.

Each side quoted historical authorities. Leavers cited Abraham Lincoln who backed resettlement of freed Blacks throughout his life. Remainers cited Frederick Douglas who asserted that Black people belonged in America as much as any other immigrant.

Non-Black Americans were troubled by these events. Some saw the new confidence and pride of Blacks as arrogance or “uppity”. Racists were furious. Others were merely envious. Conservatives feared the possibility of another Cuba, a rallying point for third-world peoples who might identify more with Afrolanticans than US capitalists backed by US military and political pressure. The US government worked to undermine the Leavers, seeing them as a threat to world stability. Agents of the government tried to find Black leaders or academics to back up their conspiracy theories about this invented plot, but none were willing to sign on, which was surprising.

Meanwhile, Black people organized to leave. Even Blacks who didn’t want to go supported this movement with money and services. That frightened many white people. Governments and corporations set up barriers. Visas were denied. Threats were made of loss of citizenship. The right to return even to visit relatives. Criminal charges and civil litigation followed.

Black people banded together to fight off these attacks. A large flotilla left on July 4, in search of Black Independence.

But. As they neared Afrolantica, the mists rose, and the island began to sink back into the Atlantic. They watched it disappear. They realized they were not feeling grief or despair, but a deep satisfaction in having accomplished so much together. They spoke of the words of Frederick Douglass:

“We are Americans. We are not aliens. We are a component part of the nation. We have no disposition to renounce our nationality.”

This spirit inspired a huge number of Black people to renewed efforts to achieve their place in their America.

Discussion

1. The image of the pressure Black people feel in America just trying to live their lives, and the freedom they felt in Afrolantica is striking. It’s reflected in the coverage of the confirmation hearings for Judge Ketanji Brown Jackson. The hearings featured the New Racist Stylings of the Republican Party. Ted Cruz brought in posters of a baby playing with blocks to illustrate something he didn’t like about Critical Race Theory, and asked Judge Jackson whether babies are racists. Elie Mystal explains what happened next:

Jackson started to answer. She said, “Senator.” And then she sighed. And then she paused. For a long time. As the silence filled the room, I felt like I could see Jackson make the same calculation nearly every Black person and ancestor has made at some point while living in the New World. It’s the calculation enslaved people made before trying to escape to freedom, or activists made before sitting down at the white lunch counter. But it’s also the calculation a woman makes before responding to the e-mail of the failson who was just promoted ahead of her, or the calculation I make when a white executive comments on my Twitter feed but not my published columns. It’s the calculation when black people try to decide: “Am I gonna risk it all for this?”

This is what Jeneé Osterheldt, writing for the Boston Globe, saw:

Black women are familiar with the weight of white supremacy even when it cloaks itself in a polite veneer.

The GOP repeatedly has said Jackson’s Supreme Court confirmation hearings are to be fair and respectful. They tell her how “intelligent” and “articulate” she is, affirming how proud Jackson should be as they look for ways to lay pressure on her in hopes of making her chin reach her neck in shame.

Black people in, say. Kenya don’t feel the pressure Mystal and Osterheldt describe, pressure not mentioned in other coverage. That’s just for American Black people.

2. As with any parable, we have to ignore the parts that don’t match up well with reality. (Do not get me started on the Parable of the Prodigal Son.) Bell ignores the practical difficulties of living in a land with no electricity or other form of power, the problems of capitalism generally and many others not central to his concerns. We should ignore them too if we want to learn anything useful.

Taking the parable at face value, we see one of Bell’s central concerns. He believes that racism is so deeply entrenched in US society that it can not be eradicated. Black people will only make progress by working together. As I noted in my introduction to this series, he believe that the effort has to be the goal, it has to be its own satisfaction and justification.

3. As with any good parable, there are layers of meaning, and different lessons for different people. We might ask White people how they would react to the situation. I’m not at all sure how I’d react.

My first thought was that it would be great for the people who wanted to go, and I’d be delighted to help. Then I thought that I’d feel terrible that so many Black people would want to go. I’d take it too personally, as them saying I have failed to treat them right, even if #NotAllWhitePeople. But that gets really complicated. It isn’t just my fault, and I don’t know what I personally could or should have done differently. How do we even allocate fault in the situations we are born into, and only escape with the help of others? Communities of every nationality and race in our country are dysfunctional. I would gladly support any plausible effort to fix them as best I can, but I have no ideas about what to do.

Maybe Bell is asking us to think about how we get people to work together to solve common problems. Isn’t that what’s supposed to happen in a real Democracy?