Swingers

AMA - How originalism eliminated the middle of the Supreme Court

Originalism, as a legal concept in interpreting the Constitution, is about as old as I am. As a creative person, I have to admire that I could come up with an idea and then have that idea become the guiding standard of the most powerful government in history. If only.

Being an Originalist is what brings up our latest edition of Ask Me Anything.

Founding Subscriber ECM is back and wants to know – What impact have swing SCOTUS justices had over the years, and has their ideology changed over the years?

This is an excellent, complex question, my friend! There’s a lot to unpack. Fortunately, I’m not a lawyer and technically I’m not a historian, but I am an expert at making stuff up, so let’s jump in and see what we come up with.

What Do The Framers Want

There’s this funny concept that since the United States was created by a bunch of rich white guys who didn’t want to pay taxes, that somehow it always needs to stay that way.

Of course, it’s easy to argue that it has.

We are quickly approaching 250 years since we signed the Declaration of Independence from our British Overlords, and we established a country that immediately needed to change direction after realizing what a disaster the original framework we thought we should govern ourselves under was.

Which is funny when you get into the idea of what a “Swing” Supreme Court judge is, let alone what that person does, and whether their ideology has “changed.” But I’ll get into that later. It’s important to start at the beginning, when we hit the reset button.

In 1789, we ratified the Constitution, a document that provides the framework for how we govern, along with 27 Amendments we have tacked on since. A few of them corrected past mistakes, and others, hopefully, will prevent future ones, but overall, the concept of the Constitution is that it can be amended.

Interpreting the Constitution and aligning with the laws passed is the responsibility of the judicial branch.

Interpretation is a fantastic concept. It’s one of those words that can be a noun, an adjective, or even an adverb. Interpretation is as versatile in practice as it is in theory. I can “interpret” many things: art, college football playoffs, Halloween, what makes a good guard dog, you name it.

But when it comes to Constitutional law, interpretation gets its own marketing term – originalism.

We’re In

In 1971, Yale Law School professor Robert Bork wrote an essay explaining that in order to have a just society, individuals needed to remove personal value and instead look at any Constitutional text “show the framers actually to have intended and which are capable of being translated into principled rules” that blamo – originalism was born.

A little more than 15 years later, President Ronald Reagan nominated Bork to the Supreme Court, a nomination that became the most contentious in the court’s history (at the time). Bork would lose the nomination, but his idea, his “original” interpretation of the Constitution, would win the long game.

Bork’s controversial hearing occurred during a period of significant change on the Court. In 1986, Chief Justice Warren Burger informed Reagan of his plans to retire, and Reagan’s Attorney General, Edwin Meese, would lead the effort to find a replacement. Reagan determined that the person was already on the bench and promoted William Rehnquist to the job.

That confirmation was a battle, but Rehnquist won the day, which meant an opening for an Associate Justice. There was a desire for a less controversial nomination, and unless the person was a total firebrand, he could glide under the radar with complete agreement.

And so, Antonin Scalia was nominated and confirmed by a vote of 98-0.

Originalism had secretly slipped past the bouncer and has now been body slamming everyone on the dance floor since.

The Federalist Society was founded in 1982 at Yale. The concept is a familiar one – a bunch of conservative, picked-on white guys, invent an idea that they project onto the framers, this time with our boy, Alexander Hamilton, which happens to help them maintain power. They take over the country with the notion that originalism should be the foundation of any interpretation, and even beyond that, just how a government runs itself.

By 1982, we had stopped amending the Constitution and instead began a secret war to get laws accepted – we would interpret them into existence. Nine years earlier, the Supreme Court ruled in Roe V. Wade that women had the right to body autonomy and abortion was a right secured under the massively complex 14^th Amendment.

The Federalist Society strategically flooded the courts with judges who shared their values – one being that the Framers never intended for the medical procedure known as abortion to be protected, and the endgame was to influence the course of the country in a way that would have the United States of America hit another reset button.

Power

If a country stops amending the Constitution and puts people like Antonin Scalia on the Supreme Court, who professed whenever he could that the Constitution is actually “dead, dead, dead,” and its legislative branch is embarrassingly unproductive and doesn’t pass laws, you end up turning the power of the country into the hands of individuals, which in most people’s view, ends up being just one person.

That’s a lot of power.

But that power doesn’t lie with the President. It’s where the idea of the Swing Supreme Court Justice comes into play.

The Supreme Court is made up of nine justices. Nine is a great number, because you cannot have a tie. This is an important factor because you can’t have someone swing if that swing just created a deadlock. Since Reagan, the Court has effectively been a conservative-leaning Court, accomplishing the Federalist Society’s goal of ridding the country of those horrible liberal judges who keep providing people with civil liberties and protections.

So when a Justice “swings,” that person must join the minority and turn it into an unlikely win.

During our lifetime, ECM, Anthony Kennedy is considered The Swinger of the Court. Nominated and confirmed at the tail end of those changes in Reagan’s second term in 1987, Kennedy blazed his own path in many decisions, angering conservatives with votes that lessened their power.

In 1992, Kennedy joined other swingers, David Souter and Sandra Day O’Connor, and ruled that Roe v. Wade be upheld in Planned Parenthood v. Casey. In 2007, he swung the other way and wrote the opinion that the Partial-Birth Abortion Ban Act of 2003 was constitutional, in Gonzales v. Carhart.

He also wrote the majority decision that same-sex marriage was legal in all states in Obergefell v. Hodges.

With a Court split four on the conservative end and four on the liberal end, Kennedy appeared to be quite influential.

And he was. But that influence was based on the court’s balanced “ideology.”

Independent

But since Donald Trump won the White House in the terrible election of 2016, he has appointed three justices, swinging the balance of influence to the conservative side with a 6-3 voting advantage.

Only two Black men have ever served; the current one is the longest-serving justice of all time and has become increasingly unethical over time. The court has had six women serve on the bench, and currently, four are serving. If you are like me and Anthony Kennedy and share the Catholic faith, you’ll be pleased to know that six of them are currently on the court. So while there is a lot of variety, there’s also a lot of conformity in values.

Since Amy Coney Barrett became Justice Barrett, the court now has five former members of the Federalist Society, achieving the dream born all those years ago in the quaint little college town of New Haven, Connecticut.

What does it mean to be a Swinger on the Supreme Court?

Well, I’m not sure.

But since you only need to go to law school for three years and you can interpret history however you want, how hard can it be to make up an argument?

Because originalism is deeply embedded in the court’s DNA, with no sign of being expunged anytime soon, one person cannot swing a 6-3 split in the court. Interestingly enough, when I gloss over Chief Justice John Roberts’ Court since 2020, and you look at decisions, you find there are actually three swingers on the court.

Roberts, Brett Kavanaugh, and Barrett. Let’s call them the “Three Swingateers.”

Neil Gorsuch can swing from time to time, but it doesn’t feel like he makes it a thing to come across as so independent. He sticks to tribal sovereignty.

Justices Thomas and Alito rarely ever join.

But the Three Swingateers have their independent issues when it comes to swinging. Sometimes they all come together, but through a different lens.

Roberts swung to the left with the Affordable Care Act ruling and LGBTQ+ rights. Kavanaugh swings when it comes to emergency cases, and Barrett swings on guns and the expansion of religious-rights claims.

Do I think their ideology has changed? Not really – and from my perspective, it comes down to individual cases. All three voted in the majority in Dobbs v. Jackson to overturn Roe v. Wade, which, again, the originalists argue, was never mentioned in the Constitution.

(You know, Jesus never spoke about abortion, but religious leaders interpreted it to be the most important sin of all time. See how this can work? We just invent ideas and project them into reality.)

So I guess my overall point here is that there used to be a middle where Justice Kennedy made a difference.

But the Federalist Society won, and the made-up idea of originalism is now the accepted interpretation of Supreme Court cases.

So as we move into the second half of life, we move past Kennedy and keep an eye on the Three Swingateers and the cases put in front of them. Originalism eliminated individual Swinger Justice influence and, with it, removed the possibility that we might ever be just one vote away from, say, protecting the laws that guarantee equal protection to everyone in the United States.

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Okay! I probably made this essay a bit too long, but it’s such a complex idea, and it took me a while to try and wrap my head around it. I hope you found this helpful. Let me know in the comments.

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This is the time of year that shocks everyone. Can you believe it’s almost Thanksgiving? Yes, yes, I can, because I understand how a calendar works!

Seriously, it’s also unbelievable that we are barreling toward the end of another year. There’s so much to do over the next 40ish days, then we kick off the New Year by doing some more!

Be sure to take care of yourself. I’m noticing a lot of people are getting run down with work and family life. The holidays are not fun if you are sick.

I’ll see you back here on Monday. Thanks for the continued support of Okay History.

Okay,

Chris