The court gone wrong is an essay on how the Supreme Court has become an arbitrator and the crutch people have come to use to get laws defacto and the misdeeds or rulings in error undone. It opens up by addressing the Roe v Wade issue in which the Democrats, vis Obama’s admin, had a majority in the House and Senate along with a Democratic President. Yet even as the culture shifted and openly accepted the act of having an abortion for any reason, even if it is distasteful to one’s morals. The issue pivots around the weakening of the right to privacy, on which Roe v Wade was ruled, as it was one right to privacy that allowed the ruling to stand so long as it has. Now states are using and enabling civilian stools who report the doctor, and the doctor gets penalized vs. the patient. So the right to privacy isn’t infringed as the state isn’t infringing on it. Like when someone has been censored on social media, it’s a private company and, therefore, not a violation of the freedom of expression.
Reforming the Supreme Court should be reformed or limited in its powers, as the essay covers with no disagreement from me and the 1930’s “Switch in time to save the Nine” as the Supreme Court was inhibiting the Roosevelt admin was trying to extend the social safety net and ensure the reduction of crushing poverty. This contestation showed how undemocratic the Supreme Court is, but it is a good and bad thing, reliant solely on the man in the house and the build-out of the Senate and House. Imagine if Bush, Obama, and Trump had frictionless power and the supreme court was held to the public, swayable by propaganda and thereby loosening the ground the judges can or could fight the present or former admin on.
The Roe v Wade ruling was inferred from the constitution and, in that, is a form of originalism, which this essay leads us to. Which version of originalism is to be used, and are they consistent across the board to have enough consensus to hold the line or cause division and the court to hold no legitimacy or power as its leanings would inhibit the court? The flavors of originalism:
- Ginsburg emphasized the intentions of the COnstitution’s authors
- Respecting precedent, even if it’s in opposition to originalism in its understanding
- Not many are willing to do as much
- That the original intent should override the mistakes superseding the precedent and standing in the previous ruling
- Who is the interpreter of this ruling?
As put in the essay,
“Some originalists think there is a difference between “interpretation,” where judges must follow the original meaning, and “construction,” where judges have nothing to follow and must exercise discretion.”
The constitution should be interpreted in a way that fits its original public meaning. This ignores technological advancements; yes, they allowed private ownership of cannons and warships or social media, but if going by the original meaning, those protections or restrictions do not extend to the new avenues for communication or new modern weaponry. Yes, I am a supporter of the second and first Amendments and the technological advancements with the social pressure for change, be they restrictions or liberation to some sort, it requires some order applied from an outside entity. So sticking solely to the original public meaning would limit the government too harshly, even for my liking, and other protections such as child labor or workers having breaks and other rights obtained after the penning of the constitution.
The essay leads us to this result, and the terms and the language were from the 18th century. It argues if originalism went ham, it would:
- The national government would be permitted to discriminate based on sex and race
- The national government wanted to segregate people by race
Quote:
“If originalism might allow government to do what some people consider to be terrible things — for example, to ban contraceptives or to sterilize people — originalists respond that in a self-governing society, the appropriate correctives come from We the People, not from unelected judges. Consider the case of abortion: originalists say that if the right to choose is to be protected, it must be because majorities want them to be”
This leads to judges admitting the limit of originalism and defaulting to the democratic means for a ruling and following, to an extent, the social demand and change to determine how they would rule.
The problem is when the judges go to interpret the personal inclinations of said judges to go and influence their opinion, therefore can it be called originalism, or is it their version of originalism?
Bought up in the essay is the liberal school of thought of interpretation in the form of “moral readings,” which would be even more open to the sway of personal whims but also public discontent or affirmation. That could be the seed for disastrous results, but it would be more influenceable to the public and more democratic.
Thoughts outloud 