Jim Crawford: When the Supreme Court votes by party, then what?

Published 12:00 am Tuesday, October 5, 2021

We Americans like to believe the Supreme Court is the final and neutral arbiter of the laws passed by the representatives of the people.

Ideally, the court will simply make certain that laws passed align with our constitution.

Unfortunately, the court does not always function with such clarity. In recent years, the court created out of whole cloth a new, oldish-sounding concept called “originalism,” born in circa 1980.

Originalism’s devotee on the court was Associate Justice Antonin Scalia, who was known as a far-right conservative justice, voting consistently much like elected Republicans advocated.

But this was often viewed as a political approach of the constitution. So, with Scalia’s embracement of originalism, it was argued his decisions held no contemporary political context because originalism sought only to reveal the constitution’s original meaning.

But that argument required first the assumption that somehow Scalia had greater access to the memories and hidden intents of writers long dead than any other interpreter on the court.

The second problematic issue was that the originalists were slave owners, whose original intent should not be held up today for any reason. Thirdly, the original writers held no view on many contemporary issues and the laws written to address those issues.

Imagining that the originals had something valuable to say about social media or cyber privacy would be like searching the Mona Lisa to find Picasso’s painting style.

Then the originalists had to argue that the meaning of words never changes, making the original meaning of, for example “cruel and unusual” the same then as now, a hard-to-imagine thought about words, language and meanings.

What originalism actually did was to create a thin screen of objectivity to conceal rank political decisions from the court.

And that intent lived on in the court, reflected in 2000 when ruling a solely political 5-4 to overturn the Florida Supreme Court ruling and insist that votes stop being counted to name George W. Bush the president over Al Gore, a ruling left naked in terms of precedent or rationale.

For years, the court suffered in public support after Bush v. Gore. While the court did recover a good deal of its trust by the people, this year all of that trust was lost again and, perhaps forever, when five Republican Justices, ignoring precedent and the constitution, let stand a visibly unconstitutional law in Texas.

To fully understand the significance of the loss of public trust from that singular decision, Quinnipiac polling reported confidence in the Court fell from a high of 52 percent in 2020 to 37 percent today.

And we can expect more of the same, more loss of confidence in a Supreme Court now comprised of nine justices, including five Republicans with nothing to conceal their partisan voting.

It would not be surprising to have Roe v. Wade overturned, even though it is established law and has broad and deep public support. It would not be surprising to find the 2nd Amendment, already far from its constitutional clarity to support state militias, expanded to permit everyone to carry concealed weapons in public. This, in spite of our American society already known as the most gun violent nation on the planet.

Yes, our Republican friends have now created a Supreme Court that will lose the trust of the people with its political cast of hand-picked rightwing justices.

Brace for a flurry of decisions that will stun you and anger you. The packed court, the stacked McConnell Court, is ready to abuse the history of the Supreme Court.

Jim Crawford is a retired educator, political enthusiast and award-winning columnist living here in the Tri-State.