OPINION: Conservative jurisprudence has devolved into a brazen power grab, at direct odds with our democratic system of government, and the constitutional separation of powers.
Photo Illustration by Erin O'Flynn/The Daily Beast/Getty, Rmesanic/Wikimedia Commons and Wikimedia Commons
In recent decades, GOP judges have selected a president, remade the electoral process, including by gutting campaign finance laws, as well as the heart of the Voting Rights Act; and trashed a constitutional fundamental right generations of Americans relied upon. While not an exponent of realism, Felix Frankfurter, a Harvard Law School professor, and later appointed to the Supreme Court by Franklin Delano Roosevelt,, shared realists’ skepticism about the often unacknowledged motives underlying judicial decisions.
In this regard, Cannon appears to be following the strategy employed by some Trump appointees to the Supreme Court, including Neil Gorsuch, who famously argued, in a, that a “textual” reading of a federal safety law permitted an employer to fire a trucker for leaving his damaged trailer during subzero weather to avoid dying of hypothermia. Gorsuch’s dissent was absurdly cruel and nonsensical, but it sure got him noticed by Trump’s judge pickers.
In an odd parallel with realists , realists purported to ground their rulings on historically driven inquiries into the prevailing “understanding” of a given law or constitutional provision at the time of its enactment.
It is hard to believe, however, that Antonin Scalia, the patron saint of all right wing originalists, would share the same unhappiness. Scalia was never a particularly principled adherent to the judicial philosophy he championed. He had a curious tendency to consistently “find” that the original understanding of constitutional provisions matched up exactly with his own favored right wing social policies. Scalia’s most outrageous departure from his own originalist theory was in the Bush v.
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