Andy Craig: In a sense, hardly anybody even disputes the core idea: in interpreting an ambiguous provision, how it was understood at the time can be very informative and persuasive, if not always dispositive. Also, judges shouldn't interpret their way into effectively amending a law or the Constitution.

Kagan wasn't just blowing smoke with "we're all originalists now." Sotomayor's dissent is originalism. Roberts and Thomas opinions are, as Radley aptly puts it, "shitposting libs-owning," with a couple of cherry-picked misrepresented Founder quotes that wouldn't pass muster for a high school essay.

Among other questions, I wonder how we got to the point where “separation of powers” means the judiciary can prohibit the executive from holding itself accountable. radleybalko.substack.com/p/the-suprem...

The Supreme Court foldsradleybalko.substack.com Faced with the most potent threat to democracy in more than a century, our most revered institution didn't just fail to hold, it aligned itself with the threat

In a sense, hardly anybody even disputes the core idea: in interpreting an ambiguous provision, how it was understood at the time can be very informative and persuasive, if not always dispositive. Also, judges shouldn't interpret their way into effectively amending a law or the Constitution.

But that's not how the word is used much anymore. It's become little more than a polite euphemism to refer to conservatives or, even more accurately, Republicans. Throw in a couple of generic Founder quotes and then do whatever you want. And that pretense gets no more blatant than in this case.

Another recent example in Munoz. Barrett cites Madison's Report of 1800, quoting as if it's his position a hypothetical premise he's actually stating for arguments sake, says he's not conceding, and dismisses as irrelevant. She plainly didn't even read the sentences directly around what she quoted.

Omggggggggggggg you're kidding I would always get mad as a law clerk when briefs would pull that shit with Supreme Court cases and such

It's infuriating because the Report of 1800 was all about Madison insisting the federal government had *no* constitutional power over immigration, and she misquotes it as supporting plenary power.

The Supreme Court's Dubious Use of History in Department of State v. Munozreason.com Justice Amy Coney Barrett's majority opinion includes significant errors, and violates some of her own precepts against excessive reliance on questionable history.

I wrote a note about it some time back, when I decided to republish the whole thing here. www.libertarianism.org/articles/jam...

www.libertarianism.org

I find it so grimly hilarious that very obviously there is no federal power over immigration except, wait for it, the Commerce Clause construed liberally! Originalism! (Very much to your point lol. But it's not like your Scalias or Meeses were any better on this precise point)

Oh she read it, she just ignored it...

I really don't think she did. I haven't dug throw the amicus briefs to see if any of them used it, but either she copy-pasted from there or a clerk found it and either misunderstood or didn't care. I don't believe she ever read the Report herself. She'd have found something else to quote if she had.

Roberts, on the other hand, has most assuredly read all of the Federalist papers including the entirety of No. 70, and I imagine Washington's Farewell, too. That's as far as it gets at the opposite end of the obscurity spectrum from the Report of 1800. He knew exactly what he was doing.

You could easily be right, but that is scandalous if you are. I did high school debate, and this kind of crap was common. We would literally say "turn the page and read the rest" in arguments. And this was in the 70s. It is completely unacceptable that this is happening at the Supreme Court.

I mean it REALLY depends how you formulate the core idea though

I agree that this is a shift/degeneration from what e.g. Scalia meant But the way you put it didn't capture his position either, he was engaged in an aggressive campaign to delegitimize other modes of interpretation, and Kagan's remark absolutely does not reflect the success of that quest

Errr that was meant to reference this bsky.app/profile/andy...

But that's not how the word is used much anymore. It's become little more than a polite euphemism to refer to conservatives or, even more accurately, Republicans. Throw in a couple of generic Founder quotes and then do whatever you want. And that pretense gets no more blatant than in this case.

To be sure, a lot you can debate about the idea, and its proper definition, in all its permutations. And once you get further into it, what's consensus drops off quickly. But there's no version of it, on any credible definition, under which Roberts was using an originalist mode of analysis here.

With the caveat that I have not managed to force myself to read the damn thing yet, I agree I suspect when I finally do read it I'll think he wasn't using any legitimate modality. Possibly like, aiming for structure and missing? Or rather trying to camouflage his lawlessness as structural inference

Pure policy considerations pretending to be structural implication.

Oh come on, you have the strange and dubious honor of living at the time that the very worst SCOTUS decision in history came down. Surely that's worth cracking the abomination open after a couple drinks?

The whole reference to Federalist 70 is just such nonsense it is really making me mad; it's a disgrace.

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