They mock the supposed inconsistency of originalist judges but offer no coherent, substantive critique beyond reflexive partisan sentiments.
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hree months ago, Senator Chuck Schumer stood outside the Supreme Court building and warned Justices Gorsuch and Kavanaugh that they would “pay the price” and would “not know what hit” them if they upheld a Louisiana law requiring abortion clinics to have admitting privileges at a local hospital. Last week, that same Chuck Schumer and two other Democratic senators released a 54-page broadside against their Republican colleagues titled “Captured Courts: The GOP’s Big Money Assault on the Constitution, Our Independent Judiciary, and the Rule of Law.”
If Senator Schumer is concerned about the integrity of the Constitution and the independence of the judiciary, threatening justices like a third-rate mafioso on the steps of the Supreme Court in the name of abortion rights is a strange way of showing it.
The report’s executive summary states that Mitch McConnell and Senate Republicans have “prioritized packing the judiciary with far-right extremists” and are “packing our courts with politicians in robes.” If they really were concerned about judges acting as “politicians in robes,” Senate Democrats would insist that judges restrain themselves to a neutral mode of construction that is constrained by the written text and its original public meaning.
Paragraphs later, however, Senate Democrats reject originalism out of hand. They first claim that originalism is a “political project, not a legal or constitutional one,” used as a shield to “achieve political and policy ends that serve corporate interests, social conservatives, and ultra-rich Americans.” The objection here is that originalists are insufficiently committed to originalism — that their professed fealty to the written text is undermined by their willingness to deviate from the written text in pursuit of “corporate interests, social conservatives, and ultra-rich Americans.”
On the very same page, however, the senators sneer at the notion that “the Constitution’s meaning should be treated as frozen in time at the moment of its ratification.” They trumpet instead the “liberal” idea that “our centuries-old Constitution must be interpreted to account for the needs of an evolving society.” Which is it, then? Is originalism bad because it fails to vest judges with the power of philosopher-kings to “account for the needs of an evolving society” when interpreting a written instrument of law? Or are self-proclaimed originalists bad because they fail to adhere to their own standards?
The report then objects to the supposedly “undemocratic” instincts of the Republican-appointed majority on the Supreme Court and the Republican appointees in the judiciary writ broad. Here, too, Schumer and the other senators cannot seem to make up their minds about the substance of their objection to conservative jurisprudence. First, they claim that the Supreme Court’s Republican-appointed majority have abused their power of judicial review to thwart the will of “real people”:
In furtherance of its corporate agenda, the Court’s Republican majority finds “rights” in the Constitution that make it difficult for Congress to pass laws that real people want; the majority casts aside the bipartisan work of Congress where it gets in its way. For example, in Citizens Unitedthe Supreme Court invalidated a bipartisan campaign finance law based on a constitutional “right” to corporate political speech — a right found nowhere in the Constitution’s text.
It is certainly amusing to see three senators committed to upholding Roe v. Wade express their concern about abuses of “the Constitution’s text” and frustrations of the popular will. One wonders what these three tribunes of “real people” think the cattle ranchers of Union City, Okla., would do if given the chance to implement prayer in the public schools or vote for their own abortion laws.
They are not actually concerned about legal fictions that deprive ordinary people of the right to democratic engagement, of course. Several pages later, Schumer et al. object to the unwillingness of the Court majority’s to defer to the interpretative guidance and judgments of unelected bureaucrats:
For decades we have relied on agencies like the Environmental Protection Agency, the Securities and Exchange Commission, and the Department of Labor to protect our environment, our financial security, and our workplaces. These agencies are designed to rely on expertise and evidence to make rules that benefit all Americans. The Roberts Court puts this system in jeopardy, undermining agency independence and the determinations of scientists, economists, and other experts.
Simultaneously, the report accuses Republican appointees of undermining the democratic process by inventing “a constitutional ‘right’ to corporate political speech” supposedly “found nowhere in the Constitution’s text”; undermining the right to an abortion, which is not found in the Constitution’s text, but is still worthy of protection; and undermining the authority of unelected “scientists, economists, and other experts” by handing lawmaking power back to a democratically accountable legislature.
These complaints, of course, are irreconcilable.
The senators then rattled off a series of scattershot indictments of the Supreme Court’s Republican-appointed majority. Citing the Roberts Court’s “more than 80 partisan 5–4 decisions,” Schumer et al. accuse the Republican majority of fostering “a divide that undermines long-term confidence in the Court as an institution, though the Roberts Five don’t seem to mind.” If such divides undermine “long-term confidence in the Court,” perhaps one of the four liberal judges could join the conservative majority for the sake of our institutions. If voting in lockstep is evidence of partisanship, it is unclear why the Court’s four Democratic appointees would not be similarly “partisan” for voting in unison against the 80 decisions cited. Apparently, Ruth Bader-Ginsburg and Sonia Sotomayor are fearless independents, but Clarence Thomas and Neil Gorsuch are unthinking toadies to the Republican agenda.
Their parting indictment of “the Republican majority” is its purported view that “the individual right to own a gun is more important than the right of Americans to be safe from gun violence; a religious employer’s right to ‘religious liberty’ deserves more protection than an employee’s right to access statutorily mandated contraceptive care.” This might be a compelling argument if “statutorily mandated contraceptive care” were a constitutional “right” and the free exercise of religion were not — but, alas, the opposite is true, regardless of three Democratic senators’ use of scare quotes in a half-baked “report” on the judiciary.
The drafters of this report mock the supposed inconsistency of originalist judges, but the senators themselves offer no coherent, substantive critique of originalist jurisprudence beyond callow and reflexive partisanship. Surely, that is not the Federalist Society’s fault.
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