‘Supporting Trump’s free and full license above the law would in this case expose the conservative majority’s originalism as a hollow conceit.’ Donald Trump’s packing of the supreme court, to which he appointed three members, to create a reliable conservative majority, has been hailed by the right as his greatest achievement. The Wall Street Journal editorial page has stated that the most important prospect of a second Trump term would be his appointment of federal judges in their mold. But Trump’s candidacy for that second term now poses an existential threat to the legitimacy of the court’s conservative majority. The decision earlier this week by the Colorado supreme court disqualifying Trump from the state ballot strikes at more than Trump’s eligibility. It cuts to the core of the ideological doctrines of originalism and textualism that underpin the conservative majority’s entire jurisprudence. Originalism claims to divine the original intent of the country’s founders and interprets the constitution along those lines. Using cherry-picked, false and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection and voiding voting and civil rights. Originalism is a recent contrivance, patched together as part of the “gameplan”, as Trump’s court whisperer, the Federalist Society’s Leonard Leo, describes it, of the capture of the courts to entrench the right’s agenda beyond the threat of adverse political tides for generations to come. Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights. It claims that to interpret a law, a judge may examine the plain meaning of its text but nothing else. It works hand in hand with originalism to exclude inconvenient portions of the […]
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