Modern conservatives on the Supreme Court have long portrayed themselves as stewards of originalism, a legal theory that proposes the U.S. Constitution should be interpreted as it was understood at the time of its creation in the 18th century.
It should be noted that the framers of this historical document believed Black people were three-fifths of a person and women shouldn’t have the right to vote or control their own body. Also, they didn’t care much for the right to contraceptives, marriage equality, and inter-racial marriages, but I digress. However, the founding fathers refused to make America a monarchy or dictatorship, having launched a rebellion against the British Empire for the sake of freedom and a government by and for the (rich, white) people.
Nonetheless, originalism didn’t stop the conservative majority from giving Trump expansive powers - and a get out of jail free card - in a controversial summer ruling that said the President has “absolute immunity” for core acts. Originalism was once a fringe legal theory that gained ground in the 1970s arising from what conservatives perceived was the “wokeness” of the Warren Court. Justice Scalia supercharged it in the 80’s, and the conservative majority, in various capacities, are among its current disciples. In reality, originalism is just legal Play-Doh that conservatives can mold and manipulate to justify reaching their desired end goal.
For this reason, among others, Harvard Law Professor Mark Tushnet, one of the country’s most respected constitutional scholars, makes a case against originalism and judicial theories in his latest book, WHO AM I TO JUDGE? Judicial Craft versus Constitutional Theory.
In this Chai Talk, I ask Professor Tushnet how this Supreme Court’s interpretation of originalism can be used to entrench Trump’s power grab, and how Justice Amy Comey Barrett might emerge as a curveball and act as a bulwark against a potential dictatorship. Professor Tushnet encourages people to remain skeptical of the Supreme Court, regardless of who’s in control, and says he wouldn’t be surprised if a Fox host emerges as the next Trump Supreme Court nominee.
Grab a chai and give us a listen!
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