Thomas Zimmer: In a functioning system, citizens should be able to trust the institutions that are nominally tasked with upholding democracy. In America, the rightwing supermajority on the Supreme Court acts as the spearhead of a reactionary mobilization against multiracial pluralism. 3/

The “Originalist” Supreme Court vs Democracy As the Right is using “originalism” to re-impose a reactionary order on the country, I exchange letters with @audrelawdamercy.bsky.social about the dangers of judicial supremacy – and how to get out of this trap Some thoughts from my new piece: 🧵1/

The “Originalist” Supreme Court vs Democracythomaszimmer.substack.com As the Right is using “originalism” to re-impose a reactionary order on the country, I exchange letters with Madiba Dennie about the dangers of judicial supremacy – and how to get out of this trap

Over the weekend, Madiba and I talked about her book, the past and present of the Supreme Court, the role of the Reconstruction Amendments in American history, the rise of “originalism” since the 1950s, and the struggle to establish egalitarian democracy. 2/

In a functioning system, citizens should be able to trust the institutions that are nominally tasked with upholding democracy. In America, the rightwing supermajority on the Supreme Court acts as the spearhead of a reactionary mobilization against multiracial pluralism. 3/

In this crusade to entrench and maintain discriminatory hierarchies of race, gender, religion, and wealth, conservatives are deploying “originalism” as a key weapon to dismantle the civil rights order. 4/

They are trying to turn the clock back – as far back as to before the Reconstruction Amendments that were adopted after the Civil War – by repealing whatever racial and social progress they say is not in accordance with the Constitution’s “original public meaning.” 5/

We start our conversation with the, excuse me, origin story of originalism: It rose in response to Brown v Board in 1954 – deployed by those who rejected integration, part of an attempt to delegitimize the idea of multiracial democracy from the beginning. 6/

Originalism’s rise was part of a broader mobilization against the progressive changes of the 1950s and 60s – tied to the institutionalization of the conservative legal movement as well as the grassroots mobilization of rightwing activists. By the 90s, it had become dogma. 7/

By the 2000s, originalism had morphed from a tool designed to function as a bulwark against the extension of rights to a sledgehammer working to dismantle existing rights and safeguards – all while vastly expanding the privileges of those in positions of power. 8/

Originalism’s trajectory mirrors a broader story of how the Right has been embracing an increasingly authoritarian form of minoritarianism: As “real America” is under siege, the Right has no more patience for “judicial restraint,” not even rhetorically. 9/

2/2 From a historian's point of view, originalism has no method for reading historical texts. It cherry-picks passages rather than look at the whole discourse in a period; it does not use a procedure to establish a web of original meanings; & it does not consider any factors outside the text.

Yes. The basic problem is that the jurists are not trained as historians. The less they understand of the best historical method and practices, unfortunately, the more likely they are to believe they're highly competent at it.

1/2 From a philosopher's point of view, originalism puts all moral authority on the text, as if judges have neither agency nor their own moral responsibility. As long as the text authorizes something, it's ok.

I’ve always wondered how a theory like originalism showed up in a common law system, in which it makes absolutely no sense. Like, negative sense. Really looking fwd to both convo and book.

Yep, this discussion was fantastic. Thanks very much for sharing it with all of us.

Very kind - thank you, Lindsay!

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