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Undead constitutionalism


To continue on the theme of Alito’s “who are you going to believe, my cynical bare assertions of your ability to make simple logical deductions” trolling, Adam Serwer offers a concise explanation for what’s going on:

As the three Democratic-appointed justices note in their Dobbs dissent, more constitutional rights now are on the chopping block. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the dissenters wrote. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” It seems to be the latter: In his concurrence, Justice Clarence Thomas writes that precedents establishing access to contraception, legalizing same-sex marriage, and striking down anti-sodomy laws should be “reconsidered.” Setting aside the record of insincerity from Alito himself and the other conservative justices, the reason not to trust his disclaimer is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country.

The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the Founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.

Judges — much less their clerks — are not historians and have no ability to do real history. But they are capable of finding enough historical factoids to adorn every assertion that the Constitution enacted Mr. Tucker Carlson’s most recent opening monologue. That’s the only “grand theory” of constitutional interpretation you need be aware of.

And as Adam says, the generational supermajority means they don’t even care who knows it anymore — Rehnquist’s “don’t worry about the reasoning” ethos has really taken hold. This is particularly striking when it comes to Alito. He’s always been a robotic partisan, but he used to be VERY good at concealing this behind plausible-sounding dry technicalities (which caused many clueless reporters at the time to assume that he wasn’t as reactionary as Scalia.) Now, he just sounds like any Fox News grandpa yelling at the TV after his fourth triple Cutty and soda, and why not?

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