Justice Samuel Alito, in his opinion overturning the 1973 Roe v Wade federal protection of women’s access to abortion, based his reasoning on the concept of originalism. He said that abortion was not “deeply rooted in this nation’s history,” relying on a reading of state laws on the books in 1868 when the U.S. Constitution’s 14th Amendment was adopted that protects due process rights. The extremist conservative majority’s recent ruling in the New York State Rifle & Pistol Association Inc. v. Bruen case that overturned a 1911 New York state law restricting the carrying of guns in public, also relied on an “originalist” interpretation of the Constitution.
According to the Wake Forest Law Review, “Originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding ‘at the time it was adopted.'” This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times and political identities…”
Between The Lines’ Melinda Tuhus spoke with Francis Boyle, a professor at the University of Illinois College of Law. He maintains that the concept of “originalism” was effectively debunked by U.S. Supreme Court Justice Robert Jackson, in reference to then-President Harry Truman’s seizure of steel production facilities during the Korean War. Here, Boyle explains how far-reaching the promoters of originalism are likely to go in turning back the clock on decades of precedents and settled law – reaching back to target FDR’s New Deal and Warren Court precedents.
FRANCIS BOYLE: What did Justice Robert H. Jackson say at the beginning of his concurring opinion in the 1952 Steel Seizure case about originalism, which, again, all law students, certainly top law schools study? “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for the Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”
MELINDA TUHUS: The people who support it, are they saying you can’t rule on anything that didn’t appear in the Constitution? Because abortion wasn’t mentioned in the Constitution, then abortion can have no Constitutional rights? Is that basically what they’re saying?
FRANCIS BOYLE: Yes, I’ve pointed out that what they want to do is undo and reverse pretty much all the decisions by the Warren Court, including Brown v. Board of Education. So, they’re going to go back there, at least, which would take us back to 1952, 1953. But Judge Lawrence Walsh pointed out that in fact, they really want to undo the Roosevelt Supreme Court that upheld all the progressive legislation that came out of the Roosevelt administration and the New Deal. So, they really want to turn back the hands of time at least to the Herbert Hoover Supreme Court. My point is that this is just the beginning because we have to understand that except for Clarence Thomas, who is about my age, the rest of them are in their 50s. So they’ll be there for the next 30 years or so, with more than enough time to render decisions undercutting, undermining all the progressive Supreme Court decisions. By the way, Roe v. Wade, that wasn’t the Warren Court, that was Justice Blackmun, who was a Nixon appointee. So, they want to roll back the hands of time at least to the late 1920s, early ’30s before the Franklin Roosevelt Supreme Court kicked in.
As Justice Jackson correctly pointed out (in the 1952 Steel Seizure case), they will pick and choose whatever historical and legal precedents they want to obtain their ideological objective and put it together into a pastiche, basically a lawyer’s brief. If you read the Alito opinion, it’s not a well-reasoned Supreme Court opinion, it’s basically a lawyer’s brief. So fine, there it is.
It is bad news, but I think we have to understand what’s going on here. This has been a long-term objective going back to the beginning of the Reagan administration, with the court-packing by Reagan for eight years, Bush senior for four years, Bush Junior for eight years, and Trump for four years, of these highly ideological Federal Society lawyers and judges, so that today we have six of them on the Supreme Court, and even Justice Kagan likes them. She said, “I love the Federalist Society.”
So, what I’m saying then is what we need now is counter-packing. Since the Federalist Society lawyers and judges under all these Republican administrations have been packing the Supreme Court and the lower federal courts, we need counter-packing to redress all these imbalances because the life tenure for the Supreme Court is in the Constitution; it would require a Constitutional amendment [to change it], which is not going to happen. Impeachment – I think only one Supreme Court justice has been impeached; that would require 2/3 vote in the Senate, which I doubt is going to happen.
But court-packing can happen. I’m a political independent, I’m just speaking here as a legal scholar, but certainly if the Democrats could control the House and the Senate they can increase the number of justices on the Supreme Court, and I think that’s what’s going to have to be done here.
For more information, visit Francis Boyle’s website at law.illinois.edu/
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