« America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are. »
—Dahlia Lithwick at Slate.
The Republican Supreme Court is only "originalist" when it furthers GOP aims to be originalist.
The US Constitution nowhere mentions presidential immunity. But because of some obscure comment by Benjamin Franklin, the Bush-Trump justices act as if it's written on top of the document in bigger print than the Preamble.
When you vote for president and US senator you are voting for the folks who appoint and confirm Supreme Court justices. Remind vote slackers and the third-party curious about this.
If Hillary Clinton had won in 2016, SCOTUS would currently be: 6 moderate progressives, 1 conservative, and 2 batshit crazy corrupt reactionaries. Of course Roe v. Wade would still be in effect.
The Golden Rule (them what has the gold makes the rules)
For many Constitutional law scholars, last years' Dobbs decision on abortion rights at the Supreme Court came as a dismaying shock, because it showed conclusively that conlaw wasn't a realm of ideologically consistent intellectual foment, but rather, a matter of politics.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Writing for Credit Slips, the finance law scholar Adam Levitin admits to feeling a bit of schadenfreude in that moment. The "blue collar" law scholars in "grubby" banking and money fields have always treated the conlaw set as "slightly clueless toffs":
As a field, conlaw fiercely resists the idea that their field is "largely a battle of normative opinions, without any quasi-objective touchstone or clearly right or wrong answers." Finance law, by contrast, firmly roots its understanding of outcomes in expediency and politics as much as the text of the law.
And of course, every conlaw scholar must know that - at certain points - the Supremes' most consequential decisions were political, overturning jurisprudence based on shifting cultural attitudes.
Think of Abraham Lincoln, whose anti-slavery laws were repeatedly struck down by the SCOTUS of the day. Lincoln's predecessors had filled the court with pro-slavery southerners who remained on the bench long after their home states had seceded from the Union:
That court ruled in Dred Scott that Black people were "so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit":
Small wonder that the Supreme Court was considered "the last stronghold of Southern power." The court consistently ruled against Lincoln and Lincoln simply ignored their rulings:
Eventually, Lincoln hit on a very honorable solution to an illegitimate court that frustrated the political will of democratically accountable lawmakers: pack the court. He reorganized the Federal Circuits to purge federal judges who supported the Confederacy.
He also filled SCOTUS vacancies with loyalists. Even so, that didn't get him a majority - but he didn't need a majority - the political support and momentum of the anti-slavery movement flipped those recalcitrant judges. The law didn't change, but once those judges saw that they were standing athwart a vast social upheaval, those judges' formerly iron certainties about the law crumbled.
That wasn't the only time the Supremes discovered heretofore unsuspected flexibilities in their granite certainty about the Constitution. Under FDR, a pro-oligarch Supreme Court consistently struck down the wildly popular New Deal policies that won him a landslide electoral victory.
These decisions were widely denounced by legal scholars - and the public. As the court annihilated worker protections and programs to rebuild the shattered economy, FDR used the bully pulpit to call the court a "no-man's-land where no Government— State or Federal—can function":
FDR proposed age limits on judges - which was just a roundabout way of forcing the retirement of the long-serving judges who'd been appointed by the Gilded Age plutocrats whose greed had precipitated the Great Depression. Forcing retirements on the "nine old men" would open up seats for FDR to fill.
When the Supremes refused to countenance such a matter, FDR went to Congress and demanded the authority to appoint a new, younger judge for every over-70 judge who wouldn't retire (contrary to popular mythology, there is no law that sets the number of Supreme Court justices at nine and the number has fluctuated widely through the history of the US).
For the next 168 days, the only newsworthy subject was the legitimacy of the Supreme Court. It filled every newspaper, barroom and workplace conversation. The GOP was demolished in the 1936 election, which were seen as a referendum on the Supreme Court's legitimacy - a referendum that SCOTUS decisively lost.
Soon, it was clear that FDR had the majority he needed to let him appoint new judges. And then...The court found religion. They upheld a minimum wage law that was substantively identical to other laws they'd struck down just a little while before.
They upheld NLRB rulings that were basically indistinguishable from others they'd invalidated. They reversed themselves on interstate commerce and opened the door to regulating coal mines. Then they came for sweatshop garment factories. The political will to pack the court weakened - but FDR still got his court, without having to pack it. The law was subservient to politics.
In the decades since, we've allowed the myth of ivory-tower conlaw to grow unchallenged, maintaining the pretense - so beloved of the Federalist Society - that the law is a "textual" matter. The sleight of hand is obvious: every oppressor wants to claim that they're "normal" while their opponents are "political." Paying women less then men, or Black people less than white people, is "the market"; while demands for pay equity are "political."
Jurisprudence reflects politics and can only ever reflect politics. The law must deal in ideas like "fairness" and "reasonableness," and these concepts change and change again. Judges' authority only comes secondarily from their bailiffs and "peace officers" - a judge's true authority comes from their perceived legitimacy.
Judges and enforcers know this, even when they don't admit it, which is why they spend so much effort on set-dressing - robes and gavels and somber paneling and formal language. Deep down, they're theater kids with pretensions.
That's what makes the decision to bail out Silicon Valley Bank so distressing for finance law scholars like Levitin: they understand their law to be grounded in prudence and the SVB bailout is so reckless. That's why Levitin calls the SVB bailout "banking law's Dobbs moment."
SVB is a bank that increased its executive compensation in lockstep with the recklessness of their management, doubling CEO Greg Becker's bonuses as he decreased the bank's reliability:
That's what makes the bailout so dismaying. It involves an exotic (to put it mildly; "absurd" also springs to mind) interpretation of the FDIC's statutory authority and the contours of the Dodd-Frank Act, passed after the Great Financial Crisis to ensure that the public would never reward reckless banks for failure.
As Levitin writes, "I really don't know how one can teach prudential banking regulation after SVB. How can you teach the students the formal rules—supervision, exposure and concentration limits, prompt corrective action, deposit insurance caps—when you know that the rules aren't followed?"
In other words, as with Dobbs, we have enforcers and judges behaving as though they are certain that they can maintain legitimacy in the face of widespread dismay at their actions. The politics revealed by these choices are the politics of impunity, a bedrock belief that we don't matter anymore and we can all just go fuck ourselves.
That's why SVB's apologists are so unhinged. When they argue that we had to bail out SVB because otherwise depositors would pile into Jpmorgan and other already Too Big to Fail/Too Big to Jail banks, they excluded the possibility that we'd create public banks that would break free of this seeming necessity:
When they argue that giving $2B to SVB's investors (because they were also depositors in the bank they crashed) that it's not "bailing out investors," they're ignoring the possibility that if we're gonna make up new interpretations of Dodd-Frank, we could simply tack on a "no, fuck those guys, they get nothing" rider:
When they argue that they just want to save "small businesses" and "startups," they ignore the possibility that if we're going to find political will to save a bank whose balance-sheet was 90+% billionaire VC money, we might also find political will to impose conditions on the bail-ees. Like, if we're gonna save those depositors in the name of "saving jobs" we could make them sign legally binding pledges never to lay off another worker within 10 years of a stock buyback or dividend:
The fact that none of this is on the table tells us a lot about how elites view their position in society. Specifically, it tells us that they think that the majority of us should get nothing but scraps from their tables.
They haven't made a secret of this. 40 years ago, the antitrust bar underwent a hostile takeover by billionaires' lickspittles from the Chicago School of Economics, who explicitly argued that monopolies were good and demanded that judges ignore 75 years of jurisprudence and use antitrust law to defend monopolies:
The Chicago School's paymasters funded lavish junkets - the Manne Seminars - where 40% of the federal judiciary attended luxury re-education camps to teach them to love monopolies:
Today, those judges and the lawyers who appear before them argue that any "textual" interpretation of antitrust law - say, an interpretation that acts against monopolies - is laughable, ahistorical nonsense that "flies in the face of precedent." And yeah, it does:
It flies in the face of the illegitimate, corporate-purchased precedent that turned America into an oligarch's playground. It very strictly adheres to the new precedent that politics will (someday) force upon the law.
We see this in play with the copyright case against the Internet Archive, which a lower court badly fumbled yesterday, ruling against the right of libraries to scan their print holdings and lend them out because there is a "licensed" ebooks from publishers - ebooks that cost many multiples of the print editions and self-destruct after just a few lend-outs:
The politics here are obvious. As Brewster Kahle put it, this decision conceives of libraries as "customer service departments for corporate database products." The truth is that libraries are ancient, bedrock institutions. Libraries are older than copyright. They're older than printing. Than paper. Than commerce.
The realpolitik of this decision - and the publishing strategists at the Big Five publishers who support it - is that the party is over for us plebs, the age of public goods is behind us, and we should go back belowstairs and get used to tugging our forelocks again:
The law is political. The fight over these decisions to create socialism for the rich and rugged individualism for the poor is a political fight. Yes, we can and should call on Congress to amend the statutes to clarify them, in small words that even Supreme Court judges and Chicago-poisoned economists can understand. But that in itself won't make change - what will make change is the same thing that has always made change: politics.
[Image ID: A kraken strangling a coin-operated judge automata whose robes of office bear text reading 'to obtain a verdict/put a penny in the slot' and 'with costs.' He bears two signs reading 'VERDICT.']
I’m kickstarting the audiobook for my next novel, a post-cyberpunk anti-finance finance thriller about Silicon Valley scams called Red Team Blues. Amazon’s Audible refuses to carry my audiobooks because they’re DRM free, but crowdfunding makes them possible.
Linguists worry judges aren’t using it appropriately.
The federal judge who made the ruling to overturn the mask mandate on planes informed his decision in part with a search for the word sanitation in the Corpus of Historical American English.
Here's a neat article discussing this episode, and the use of corpus linguistics in law more generally.
The Constitution does not prohibit cruel and unusual punishment because cruelty is bad and we're against it. It prohibits punishment that most people would find excessive in order to preserve the public's faith in the criminal-justice system. If we started executing people for stealing a loaf of bread today, the system would lose its legitimacy. Surely an originalist would agree that the Framers were big on legitimacy.
The same is true of many other clauses--for example, the free-speech clause in the First Amendment. Free speech is protected not because it's a God-given right. It's protected be cause, in a democracy, if you do not allow the losers to have their say, you cannot expect them to submit to the will of the winners. Free speech legitimizes majoritarian rule.
-Louis Menand, in the New Yorker, 15 April 2024, p67
“Of all the criticisms leveled against textualism, the most mindless is that it is “formalistic.” The answer to that is, of course it’s formalistic! The rule of law is about form. A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism. It is what makes a government a government of laws and not of men.”
— Antonin Scalia, A Matter of Interpretation, 1997.
"The text of the constitution is helpful, but often only suggestive. Ardent defenders of textualism fail to acknowledge this. They may insist we are either textualists or Judicial Activists, manipulating the constitution to serve changing ideals and changing times. Aside from eligibility clauses that put in place strict age and residency requirements to hold office, most constitutional interpretation rests on unwritten understandings and on subjective interpretation. To fail to acknowledge this only distorts the text and puts words into the mouths of our founders that would have never been spoken in the first place. Originalism is still a version of subjective judicial interpretation, because one is still interpreting that which he or she thinks our founders would have believed or meant. Textualism is based on unwritten understandings of the constitution just the same as judicial activism. The precise text of the constitution is too vague to yield the decisions that have been reached by the highest court. Additionally, the argument that if we do not bind judges to original meaning, the judges will render decisions based on their own moral and political inclinations is not derived from constitutional text but, rather, a justice's own preconceptions of the judiciary and its role in our government. Judges should be more candid about their preconceptions and accept that their unwritten understandings give meaning to the text. To suggest otherwise is a mistake."
