Supreme Chaos: The Latest SCOTUS Moves Will Affect Every American

This strategy
has been a long time in the making: It begins in the 1980s, when the Reagan administration
birthed the court’s MAGA judicial philosophy and sold it to the Federalist
Society. The preferred philosophy (known as originalism or textualism) aims to
change the rules-that-determine-the rules by changing the way in which judges
“interpret” law. The umpire does not want to enforce the existing rules, he
wants to dictate a changed set of rules. As anyone who has ever worked in
Congress knows: If you have a choice between the rules and the substance,
pick the rules, and you will always win. While liberals have played a
“substance” game, with groups focused on particular issues like abortion or
guns, the far right has played a “rules” game. That game will continue to win
for minoritarian causes, unless the political branches, namely Congress and the
president, step up to push back and write democratic rules back into law.

However, the
conservative justices’ philosophy—“originalism” and “textualism”—is not what
it appears to be. It is framed as a “traditional” reading of the law, but in
reality, it is MAGA-level antidemocratic. No lawyer disputes that history and
text are relevant to legal analysis. But the problems with originalism and
textualism are about what they leave out of judging. They leave out traditional
judicial virtue: slow change, following precedent, prudent decisions, and a
healthy respect for majoritarian decisions. But to these justices, if text and
history say X, then precedent or prudence or what majorities want do not seem
to count.

This is
how the court overruled Dobbs, created
a new right to bear arms in Heller, and now,
in Relentless, has told agencies when and how they can regulate. None of
these decisions could have existed without a philosophy that tells courts to
ignore precedent and rejects law’s inherently conservative method of moving by
analogy, slowly, case by case, to ensure the very stability that regulated
entities like markets and businesses want.