The Supreme Court conservatives’ judicial philosophy is “originalism,” the idea the Constitution should be interpreted today according to its authors’ original intent 236 years ago.
But they wrote the Constitution for a society based on white supremacy, see article here, and many of the Founding Fathers owned slaves. Therefore, in an originalism-based judicial system, wouldn’t the Thirteenth Amendment be unconstitutional, because it goes against their intention to preserve slavery? (As for whether Amendments can be unconstitutional, see what a conservative think tank says here.)
The point: Originalism is flawed, and the traditional methods of interpreting the Constitution it’s replacing served us better. For example, you used to have a right to privacy, but don’t anymore.
What to do about it? A thought experiment: If Democrats can flip Senate seats in Pennsylvania and Missouri thanks to flawed GOP candidates in those races, and hold on elsewhere, and also keep a House majority thanks to abortion backlash, they’ll have the votes necessary to suspend the filibuster and pass legislation enlarging the Supreme Court from 9 to 11 justices. Biden, who opposes changing the filibuster or court size, wouldn’t have to sign it; it becomes law if he doesn’t veto it.
He then appoints, and the Senate confirms, 2 liberal justices. The conservatives and liberals would each then have 5 votes on the court, with Chief Justice Roberts, a moderate who adheres to traditional judicial philosophy, the swing vote. Such a court would better walk the line between Republicans and Democrats, and help heal the nation’s divisions, instead of deepening them.
The pre-Civil War Supreme Court helped tear the country apart, and a court dominated by originalists will do the same thing. Even if they don’t vote African-Americans back into bondage, which does seem very unlikely right now, they’re encouraging the arming of militant rightwing factions, supporting restrictions on voting rights, and threatening to overturn elections. In short, they’re a threat to our individual rights and the survival of democracy.
Related stories: Calling the court’s just-concluded term “a bacchanalia of reactionary indulgence,” and warning “the worst is yet to come,” Vox argues Democrats aren’t powerless and describes the elected branches’ multiple options for reining in a rogue court here. Meanwhile, a Democratic congressman is offering a scheme to defang the court. “The Constitution is very narrow in terms of the scope of jurisdiction that it grants to the Supreme Court,” he says. In most cases, it depends on Congress to give it jurisdiction. By narrowing its jurisdiction, Congress could protect legislation from Supreme Court review. Read story here.
