Discussion Group 3 (South) Virtual

ORIGINALISM GONE WILD?

The New Radical Conservative Majority on the Supreme Court.

Not since the 1930s has the Supreme Court been so conservative. That era prompted President Franklin D. Roosevelt to attempt to “pack the Court” with additional justices. FDR’s stratagem failed, but one or two justices stopped voting to overturn New Deal legislation designed to alleviate the Great Depression. It was the famous “switch in time that saved nine,” as this momentous event has been known ever since. However, as explained in the Wikipedia article cited below, that popular assumption may not have been historically accurate.

What now? Inverting T. S. Eliot’s famous line, the present Supreme Court finished its 2021–22 term not with a whimper but with a bang! We will consider the conservative majority’s favorite constitutional doctrines—originalism and textualism—as they have manifested themselves in recent cases. Are these ideological positions valid? What are the alternatives? And what, if anything, should be done about the current Supreme Court? Should another attempt be made to pack the Court? Do the liberals/progressives have the votes to make such changes? Are there other appropriate remedies? Are they realistically possible?

SOME REFERENCES (not required reading):

• ·       “The Switch in Time That Saved Nine,” Wikipedia, https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine.
• ·       The abortion decision: Dobbs v. Mississippi Department of Health, June 24, 2022. Text: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. Wikipedia: https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization.
• ·       The EPA decision: West Virginia v. Environmental Protection Agency, June 30, 2022. Text: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf. Wikipedia: https://en.wikipedia.org/wiki/West_Virginia_v._EPA.
• ·       The gun decision: New York State Rifle & Pistol Association v. Bruen, June 23, 2022. Text: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf. Wikipedia: https://en.wikipedia.org/wiki/New_York_State_Rifle_%26_Pistol_Association,_Inc._v._Bruen.
• ·       The religion (praying coach) decision: Kennedy v. Bremerton School District, June 27, 2022. Text: https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf. Wikipedia: https://en.wikipedia.org/wiki/Kennedy_v._Bremerton_School_District.
• The religion (tuition assistance) decision: Carson v. Makin, June 21, 2022. Text: https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf. Wikipedia: https://en.wikipedia.org/wiki/Carson_v._Makin