The Supreme Court is off the rails

A woman standing in front of the Supreme Court on Thursday holds a sign demanding that Justice Samuel A. Alito Jr. resign.

This week, I take your questions, look at an excellent piece of journalism and share a snippet of a Supreme Court opinion.The Supreme Court is near the end of its term. Presumably, its cases under consideration have already been decided. If so, is there a reason the court releases them in dribs and drabs ?Theoretically, the court is supposed to release them as they are done. Count me as skeptical, however, that it has not decided the immunity case.

The tests we establish bind lower court judges, who then apply those legal standards to the cases before them. In my view, as this Court thinks of, and speaks about, history’s relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention.

Put more simply, “originalism” does not work in practice. Forcing courts to transport us back to the 18th century creates uncertainty, chaos and horrific results. If we insist on locking in gun rights in 1791 and due process in 1868, we will have an America that virtually no one wants to live in, a legal system that is unworkable and a society in which disfavored groups lose progress made over centuries.

Frankly, Jackson’s observation is on target with virtually any topic because originalism in the hands of her colleagues has become a results-oriented exercise to roll back the habits, laws and values of modern America. It’s not simply that some justices cherry-pick history to reach the right-wing results they want; it’s that the entire exercise is unworkable and perverse.

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