March 5, 2024
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Adam Serwer of The Atlantic writes that the Supreme Court’s resolution to the Colorado case is about something other than so-called “originalism.”
Justice Amy Coney Barrett—alone among the Republican appointees in refusing to go along with their unilateral rewriting of the Fourteenth Amendment—wrote separately, and seemed to urge the media to avoid stating the obvious, that the justices were doing politics rather than law.
“The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” Barrett wrote. “For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
No!
The message Americans should take home from this case is that when Justice Samuel Alito says, “I do think the Constitution means something and that that meaning does not change,” what he means is that the Constitution changes to mean what he would like it to mean.
They should take home the recognition that when Justice Neil Gorsuch says, “Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” he would never allow such a thing to happen if he could avoid it.
And they should understand that when Barrett herself says that the Constitution “doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it,” she is not telling the truth, but she would prefer you not point that out.
This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach.
"Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent.
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