Radley Balko: The court's new hyper-literal originalism is producing a weird jurisprudence in which some cases turn on two competing, highly subjective, highly-distilled, multi-century historical narratives. The narrative that gets 5 votes then becomes "Official U.S. History" for every similar case that follows.

The court's new hyper-literal originalism is producing a weird jurisprudence in which some cases turn on two competing, highly subjective, highly-distilled, multi-century historical narratives. The narrative that gets 5 votes then becomes "Official U.S. History" for every similar case that follows.

Amy Coney Barrett Sounds Fed Up With Clarence Thomas’ Sloppy Originalismslate.com In a trademark case, Barrett agreed with Thomas’ bottom line but sharply disagreed with pretty much everything else.

It’s more hyper spiritual than hyper literal. A form of therapy where the right wing justices look into the past and see themselves

This. Literally no different than cherrypicking (and often obfuscating) parts of the Bible while ignoring those that are inconvenient to justify ones opinions as morally superior.

Crazy how the original intent of laws dating back to the birth of the country and various British antecedents all somehow align with 2024 conservative goals.

Yeah they shapeshift from literalists to originalists to textualists to just ex recto depending on which is necessary to get their desired outcomes. Very occasionally one or two will actually act like they're constrained by the constitution or law.

Need a new kind of Seybert Commission

Originalism has never been anything but a fig leaf, and it distresses me every time I see somebody take it seriously rather than treating it as such

That's fair for SCOTUS, but then lower courts are obliged to apply the new precedents in some sort of sensible way. Lower courts are required to take originalism seriously, no matter how little it deserves that respect.

Oh, I know they're bound by the Supreme Court, but they shouldn't treat originalism as anything approaching a consistent school of thought

Calling it originalism seems generous, seems like they're just starting with their preferred outcome and walking the reasoning back from there.

YOU WOULD QUESTION THE GREAT AND POWERFUL OZ??!

To your point, it should be more like Destinationalism because you already know where you want to end up.

Thomas is doing actual originalism (lazy just-so stories to produce the result you want). ACB still feels the need to pretend there’s a method here.

The other losers on the court have blown her cover and she’s trying to Hermoine her way through it.

I would be miffed if I saw my colleagues half-assing it while getting paid (bribed) more.

a rallying cry that even Dick Durbin can believe in

There weren't any 'bump stocks' being made illegal by the states during the Confederation, so there can't be any such laws or regulations now. #finalanswer

"...at Ancient Times."

The "write a better book report, Clarence" energy is pretty strong here.

"At least read BOTH covers, and the blurbs, and an intro if there is one, CLARENCE."

Interesting. If Thomas's opinions are reading more and more like bad middle school book reports, wouldn't that make them more pervious to challenges?

I’m not sure how you’d challenge a Supreme Court opinion.

First you buy an RV.

Most charitably interpreted, perhaps it makes them easier to reverse by future courts? Perhaps future courts will look at a Thomas or Alito opinion and find Stare Decisis not quite so restrictive (helped, as well by Dobbs)

You essentially have to wait and bring a case before a new court, get an amendment through, or pass new legislation.

Extra legally for example, outside of the scope of the current legal structure, by choosing to not adhere. I ask because when foundations are porous, a building can topple.

Fisticuffs.

Bayonets?

Convince five justices to ignore it. That's a tall order for any SCOTUS opinion, but it is slightly more realistic if the opinion is garbage.

They make them more likely to be overturned if SCOTUS is ever flipped. Other than that, no.

Originalism is and has always been bunk. Utter bullshit.

It needs to be solidly backed with evidence from reputable spirit mediums with regularly inspected 8-Balls.

"Excuse me, I would like a higher quality fascism, please!"

Seems like the trad wife lawyer is getting uppity.

She needs to be making her man a sandwich as the founding fathers intended.

Sounds like originalism crystallizing into a purer and more potent form of what it’s always been: Start with a conclusion and hunt down whatever scraps of paper from 200+ years ago support it.

Hyper-literal originalism would understand how the reconstruction amendments grant the federal government incredible authority to overturn racial discrimination in remarkably plain English, but it’s quite odd how those amendments Keep. Getting. Undermined.

When is Clarence Thomas going to revisit Loving v Virginia? Asking for Ginni.

Isn’t it just the result of an inherently reactionary institution becoming more creative in trying to counter the progressive imperative that’s right there in the second phrase of the preamble of the constitution? Historically, justices become more liberal as they age. These guys have an agenda.

📌

ahhhhh conservative true believers and their obvious (but ultimately fleeting) moments of cognitive dissonance. it’s basically my version of crack.

I’m not a lawyer and I know it’s more complicated than my reading but Barrett’s dissent really does sound like she’s taking Thomas to task for *laziness* which is just great 👍🏼

"I think we should turn B-Train."

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