The Bizarre, Billionaire-Bankrolled
Theory of "Originalism-Textualism"
Conservatives have long complained about so-called liberal Supreme Court Justices "legislating from the bench" by interpreting the Constitution based both upon the words and intent of the Founding Fathers, as well as current realities.
More recently, as conservative Justices appointed by Republican Presidents came into the majority, they've begun to use an analysis method known as "Originalism & Textualism". The theory claims that, in order to be true to the Constitution, one can consider only two things: the words of the document, and historical practices at the time of its enactment.
As retired Justice Stephen Breyer noted in re: the Dobbs decision that overturned Roe v Wade, "The majority's reasoning boiled down to one basic proposition: Because the people who ratified the original Constitution and the Fourteenth Amendment did not understand the document to protect reproductive rights, the document could not be read, now, as protecting those rights."
In short, conservative justices insisted that we are bound by decisions made hundreds of years ago by wealthy white men, decisions made when women did not have the right to vote or hold property, let alone the right to control their own bodies.
A current example before the Court illuminates the absurdity of this new approach. It involves a challenge to a state law that made it a crime to deface the serial number on a handgun. The "originalists" will now likely argue that, because there were no serial numbers on muskets when the Second Amendment was passed, it would be unconstitutional to now make it unlawful to deface something that didn't exist two hundred years ago.
As one of the Founding Fathers might say if he were alive today and learned of this new theory,
"Poppycock!"
We're likely to face a similar dispute in relation to IVF (in vetro fertilization) procedures. Because such procedures were not in use during the period the constitution was written (how could they have been?), their use now can in no way be protected by any reading of the Constitution or its Amendments.
As Breyer so astutely noted, the authors of the constitution "understood that they were defining a framework intended to endure and adapt to changing circumstances over hundreds of years. This flexible feature of our Constitution has permitted American society, including the courts, to recognize new facets of the right to liberty and equality that the document protects: the right to contraception, to same-sex intimacy, to interracial marriage, to gay marriage."
Those rights are now in danger of being taken away. Justices Thomas and Alito have set their sights on overturning other past precedents similar to Roe v Wade in order to eliminate the right to make decisions about our most private relationships.
This new Originalism-Textualism approach to reviewing laws subject to the Constitution is now becoming wide-spread at all levels of the Federal judiciary, fostered by conservative billionaires.
Big money has long pursued a strategy to put more conservatives on the Federal bench by funding organizations like the Federal Society, from whose members Trump selected the last three Supreme Court Justices. They have also tried to influence the Court's decisions by bestowing gifts and cash worth hundreds of thousands of dollars on Justices Thomas and Alito.
Their latest gambit is the sponsorship of so-called Legal Education Conferences, in which Federal judges from all levels are invited to a fancy resort for a week. The morning sessions consist of seminars at which the Originalism-Textualism theory is heavily promoted, and the afternoons are free for the judges to enjoy all of the resort's activities. These conferences cost up to $5,000 per person and, needless to say, the judges don't pay a red cent.
Soon we'll have a judiciary that interprets the Constitution based on cherry-picked history, without consideration of the impact of their decisions on the lives of everyday Americans.
And that historical cherry picking just got easier.
These same moneyed conservatives developed a unique, searchable data base, and are making it available for free to all federal judges. These judges can now use key words to search for historical references that bolster their already decided opinions about how the Constitution should be interpreted.
It becomes clearer every day that American citizens are merely subjects of the best Supreme Court that money can buy.
But wait.
We're not powerless. The upcoming Presidential election is an opportunity to ensure that future Supreme Court nominees are selected based on merit, and not on the preferences of conservative billionaires.
Ordinary Americans are the underdogs in this battle, but we do have one weapon we can use: the vote.