Dear (Juris)Prudence: Who Cooks Up the Supreme Court’s BS Originalist Ideas, Anyway?
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Last week’s episode of Amicus included a mailbag special in which Dahlia Lithwick and Mark Joseph Stern answered listeners’ burning questions about the law. Amicus listeners have a lot of smart questions, so we’re running an occasional “Dear (Juris)Prudence” series in which we share your questions and Mark and Dahlia’s answers. Write to amicus@slate.com to pose a question to Dahlia and Mark. This transcript has been edited and condensed for clarity. Dear (Juris)Prudence,
Recently, you’ve criticized many SCOTUS opinions seemingly founded upon baseless notions about the law and history. I’m wondering if the justices are themselves creating these absurd notions or if appellate advocates are suggesting and steering the justices toward these contrived ways of thinking.
Mark Joseph Stern: It’s a little bit of both. We did talk about this a good deal during our series two years ago, “ How Originalism Ate the Law .” I want to revive and kind of expand on that because we now have the real-life example of the birthright citizenship case. This was a perfect storm of the nonsense rising up from all of the drains and gutters around SCOTUS Town.
We saw a concerted effort for years by fringe academics and also politicians to try to create a theory of why the 14 th Amendment doesn’t mean what it says in its very first sentence in the citizenship clause. They laundered those views, often through the media, which was far too credulous in repeating them; got a broader array of academics, especially those eager to make a name for themselves, to embrace it and tout it; and then they ended up getting four votes on the Supreme Court.
I think that was a scandal. I think it was catastrophic—incredibly concerning that constitutional guarantee of birthright citizenship is now one vote away from possible annihilation. But that was a really good example of the originalism industrial complex, or the law-review industrial complex, churning out some nonsense that the Supreme Court came one vote away from embracing as a constitutional theory.
But the justices do absolutely have a bigger role to play here. They aren’t just passive recipients. Yes, in the birthright citizenship case, Clarence Thomas just sort of regurgitated all of this highly dubious “scholarship” about the 14 th Amendment and birthright citizenship, and we knew that was going to happen because he’s a terrible originalist, and he just cherry-picks whatever history happens to fit his preconceived notion of what the Constitution should say.
But sometimes the justices also put out a call for this complex to give them a reason to do something. And one really good recent example of this that actually was to our benefit, I think, as a country, was when the court sort of summoned scholars to give them a reason to preserve the independence of the Federal Reserve while destroying the independence of every other independent agency in the executive branch, right?
We saw in that shadow docket order from last year, the court said, We think the Federal Reserve is different because of reasons . And that was essentially a bat signal for scholars and historians to try to come up with those reasons and feed them to the court. And then in Chief Justice John Roberts’ opinion in the Lisa Cook case, he kind of embraced those in broad form and turned them into the law.
So that’s one positive example—I mean, I’m very cynical about it, but I do think it led to a good outcome. A more negative example, and maybe the most famous one, is when, many years ago, Clarence Thomas put out a call for scholars to try to revive the nondelegation doctrine, this idea that Congress can’t delegate certain powers to federal agencies and entire statutes could be unconstitutional because they give agencies too much leeway and discretion.
Famously, conservative scholars responded with a rash of, again, highly contested, often dubious, sometimes flat-out incorrect scholarship touting this idea of a robust nondelegation doctrine starting from the founding and the first Congress. And the court came very close to embracing it. Justice Neil Gorsuch had a notorious dissent in which he very clearly kind of bought into this bogus scholarship.
Eventually, the court kind of veered away from that because they realized they could do what they wanted with the major questions doctrine instead. They could just veto any federal agency action that they don’t like through the major questions doctrine and didn’t need to strike down the entire statute.
But that’s an example of Clarence Thomas sort of seeding these ideas and having the sprouts sort of grow up back to the Supreme Court, to torture a metaphor. He did the same thing, by the way, with the Second Amendment in the 1990s, where he put out a call for a scholarship about why the Second Amendment actually guarantees an individual right.
And sure enough, that scholarship came to the court, and the court cited it, and most of it has been debunked and disproven, but it’s the law anyway. So where the nonsense comes from, again, is everywhere . But I do think that we should be clear, it’s not a mystery. There’s not a lot of ambiguity. We watched this happen before our very eyes, and I think one of the biggest incentives now that this is so out in the open is that these younger scholars, people like Ilan Wurman, who kind of led the charge against birthright citizenship within the legal academy, they know they can make a name for themselves.
Again, they know that they can burnish their reputation, maybe get an appointment at a better law school, right? Maybe they can get tenure by embracing and touting these ideas and getting a citation from a Supreme Court justice, maybe even a…
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