“Egregiously Wrong”: The Supreme Court’s Unprecedented Turn | David Cole | The New York Review of Books

“Egregiously Wrong”: The Supreme Court’s Unprecedented Turn | David Cole | The New York Review of Books

By David Cole National Legal Director - ACLU, Georgetown Law Professor]

Over the course of the Supreme Court’s 232-year history, 110 men and six women have served as justices. Just a small handful of them have been “originalists,” holding the view that the only appropriate way to interpret the Constitution is to ask how its provisions were specifically understood at the time they were adopted. But in 2020 that handful became, for the first time, a majority of the Court when Amy Coney Barrett was confirmed, joining fellow originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. (Chief Justice John Roberts is sometimes an originalist and sometimes not.) Last term—Barrett’s first—the Court proceeded cautiously, mostly seeking consensus across ideological lines through narrow decisions.

But this term, which concluded on June 30, these five abandoned caution and exerted their newfound authority like few justices ever have. The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required the state of Maine to fund evangelical religious education and a Washington public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.

In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this term, the new majority applied originalism to disastrous effect, and only they know how far they will go.....