Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

This is the first of two episodes on the constitutional theory of originalism. This time we look at originalism from the inside; next time we offer broader criticisms. We spend a fair amount of time defining originalism's various versions and distinguish between academic originalism and originalism as practiced by the courts. In the end, we argue, academic originalism is difficult though not impossible to defend, but judicial originalism fails miserably at doing what its proponents claim orignalism does--keep judges from imposing their personal policy preferences in the guise of interpreting the Constitution.

Our lens broadens to deal with three issues of public policy where the Supreme Court has interfered with ordinary policy making: affirmative action, gun safety, and partisan gerrymandering. We discuss more briefly than in prior episodes the possible justifications for that interference and argue that those justifications aren't strong enough to overcome the presumption that ordinary policies should be determined by ordinary politics.

We discuss the Supreme Court's interference with the 2024 election by slow walking its consideration of Donald Trump's claim that he was immune from prosecution for his actions in connection with the January 6 insurrection. And we criticize the Court's ultimate decision for its incoherence, failure to provide guidance for the future, and inconsistency with basic ideas about our Constitution and the rule of law.

Progressives like us have vigorously criticized the Dobbs decision. Why? Doesn't it return a public policy question to the people for democratic decision-making? You'll hear our criticisms of the Dobbs decision, mostly for its internal logic, and our disagreements about the underlying issue--but our ultimate agreement that there's a fair amount to be said by people on our side of the political spectrum in favor of keeping the Court from constitutionalizing the abortion issue.

This episode explores the reasons why the modern Supreme Court is out of control and why the mechanisms that have historically kept it (more or less) in control no longer work