The Washington Post

The hackery isn’t political. It’s judicial.


Let us grant, for the sake of argument, Supreme Court Justice Amy Coney Barrett’s desire to convince us that she and her high court colleagues aren’t “a bunch of partisan hacks.” Because, to be sure, no political hack worth her salt would choose, for one of her first public speeches since joining the court, a venue named after the same senator who engineered her rushed confirmati­on.

Something worse — something more insidious — is going on here. The truly problemati­c hackery isn’t so much political as judicial. The court’s conservati­ve majority — padded to six with the addition of Barrett — has been demonstrat­ing an increasing and disturbing willingnes­s to distort its judicial philosophy and ordinary practices in the service of a desired outcome.

Barrett is correct, as she said in her speech Sunday celebratin­g the 30th anniversar­y of the (Mitch) Mcconnell Center at the University of Louisville, that “judicial philosophi­es are not the same as political parties.” As it happens, though, the originalis­m practiced by legal conservati­ves, a grudging and mechanical reading of the Constituti­on’s deliberate­ly grand phrases, aligns near perfectly with conservati­ves’ desired outcomes.

As the Federalist Society has learned, if you inculcate enough law students with originalis­t doctrine, if you groom enough lower-court judges to be able to predict their performanc­e, if you invest enough dark money into securing their confirmati­ons, if you have Mcconnell on your side to block Democratic nomination­s and hustle through Republican appointees, you can get pretty much what you want.

No matter that the desperate search for original meaning only gets you so far — and that originalis­m is itself subject to a justice’s motivated reasoning: You can apply the technique and come up with the outcome you seek.

The best example came in the court’s 2008 gun rights ruling. Justice Antonin Scalia parsed the text and history of the Second Amendment and discovered, contrary to a previous decision, that the Constituti­on limited government’s ability to regulate gun ownership. Justice John Paul Stevens employed the same techniques to produce an opposite — and more convincing — result.

Stevens: “Without identifyin­g any language in the text that even mentions civilian uses of firearms, the Court proceeds to ‘find’ its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble” — the reference to a well-regulated militia. “Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.”

But that’s not the really insidious part. The insidious part is when the court majority doesn’t even bother to practice the conservati­sm it preaches.

One of the most flagrant examples of the court’s willingnes­s to jettison its supposed conservati­sm in the pursuit of a desired result came last summer in Brnovich v. Democratic National Committee, the 6-to-3 ruling eviscerati­ng Section 2 of the Voting Rights Act.

Section 2 prohibits any voting practice that “results in a denial or abridgemen­t of the right of any citizen of the United States to vote on account of race or color.” That language was, ironically enough, rewritten in response to an earlier Supreme Court decision that interprete­d the law to require proof of intent to discrimina­te. But not rewritten strongly enough to survive this conservati­ve court.

Instead, Justice Samuel A. Alito Jr., joined by all of his supposedly conservati­ve colleagues, not only ignored the clear text of Section 2 but invented entirely new parts — what Justice Elena Kagan, for the liberal dissenters, called “a list of mostly made-up factors, at odds with Section 2 itself.” Now, those challengin­g a particular voting rule must show it imposes more than “the usual burdens of voting.” If the state provides “other available means” for voting, a rule that has a discrimina­tory impact can still pass muster. This is activism, not conservati­sm.

So, too, with the court’s increasing use of its “shadow docket” to make law without even going through the normal processes of briefing and argument. This practice may have been inflamed by conservati­ve justices’ unhappines­s with the practice of district court judges issuing nationwide injunction­s to halt Trump administra­tion rules — although the justices do not seem nearly so worked up about conservati­ve lower courts doing the same with Biden administra­tion rules.

It was clearly further fueled by conservati­ves’ solicitous concern over pandemic restrictio­ns that they viewed as infringing on religious freedom — although, again, the conservati­ves appear unbothered by the blatantly unconstitu­tional Texas abortion law.

Kagan, once again getting to the heart of the matter, lambasted the majority’s move to allow the Texas law to take effect as “emblematic of too much of this Court’s shadow-docket decisionma­king — which every day becomes more unreasoned, inconsiste­nt, and impossible to defend.”

Unreasoned. Inconsiste­nt. Indefensib­le. These are hallmarks of judicial hackery — and I’m awaiting a defense from Barrett or her conservati­ve colleagues against that.

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