Something worse — something more insidious — is going on here. The truly problematic hackery isn’t so much political as judicial. The court’s conservative majority — padded to six with the addition of Barrett — has been demonstrating an increasing and disturbing willingness to distort its judicial philosophy and ordinary practices in the service of a desired outcome.
Barrett is correct, as she said in her speech Sunday celebrating the 30th anniversary of the (Mitch) McConnell Center at the University of Louisville, that “judicial philosophies are not the same as political parties.” As it happens, though, the originalism practiced by legal conservatives, a grudging and mechanical reading of the Constitution’s deliberately grand phrases, aligns near perfectly with conservatives’ desired outcomes.
As the Federalist Society has learned, if you inculcate enough law students with originalist doctrine, if you groom enough lower-court judges to be able to predict their performance, if you invest enough dark money into securing their confirmations, if you have McConnell on your side to block Democratic nominations and hustle through Republican appointees, you can get pretty much what you want.
No matter that the desperate search for original meaning only gets you so far — and that originalism is itself subject to a justice’s motivated reasoning: You can apply the technique and come up with the outcome you seek.
The best example came in the court’s 2008 gun rights ruling. Justice Antonin Scalia parsed the text and history of the Second Amendment and discovered, contrary to a previous decision, that the Constitution limited government’s ability to regulate gun ownership. Justice John Paul Stevens employed the same techniques to produce an opposite — and more convincing — result.
Stevens: “Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to ‘find’ its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble” — the reference to a well-regulated militia. “Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.”
But that’s not the really insidious part.
The insidious part is when the court majority doesn’t even bother to practice the conservatism it preaches.
One of the most flagrant examples of the court’s willingness to jettison its supposed conservatism in the pursuit of a desired result came last summer in Brnovich v. Democratic National Committee, the 6-to-3 ruling eviscerating Section 2 of the Voting Rights Act.
Section 2 prohibits any voting practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” That language was, ironically enough, rewritten in response to an earlier Supreme Court decision that interpreted the law to require proof of intent to discriminate. But not rewritten strongly enough to survive this conservative court.
Instead, Justice Samuel A. Alito Jr., joined by all of his supposedly conservative colleagues, not only ignored the clear text of Section 2 but invented entirely new parts — what Justice Elena Kagan, for the liberal dissenters, called “a list of mostly made-up factors, at odds with Section 2 itself.” Now, those challenging a particular voting rule must show it imposes more than “the usual burdens of voting.” If the state provides “other available means” for voting, a rule that has a discriminatory impact can still pass muster. This is activism, not conservatism.
So, too, with the court’s increasing use of its “shadow docket” to make law without even going through the normal processes of briefing and argument. This practice may have been inflamed by conservative justices’ unhappiness with the practice of district court judges issuing nationwide injunctions to halt Trump administration rules — although the justices do not seem nearly so worked up about conservative lower courts doing the same with Biden administration rules.
It was clearly further fueled by conservatives’ solicitous concern over pandemic restrictions that they viewed as infringing on religious freedom — although, again, the conservatives appear unbothered by the blatantly unconstitutional Texas abortion law.
Kagan, once again getting to the heart of the matter, lambasted the majority’s move to allow the Texas law to take effect as “emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”
Unreasoned. Inconsistent. Indefensible. These are hallmarks of judicial hackery — and I’m awaiting a defense from Barrett or her conservative colleagues against that.