So @jvlast, I will never forget when Charlie interviewed George Will a few years ago and GW said (paraphrasing) "I've always been staunchly opposed to legislating from the bench but now I'm coming around to the merits of it". This was just after Mitch rammed ACB onto SCOTUS for the hat trick - coincidental, I'm sure.
The conservative movement has been trying to convene a constitutional convention for decades now with the goal of rewriting the US Constitution to enshrine right-wing preferences and prohibit any progressive measures from being instituted. They have failed so far, though they have come close to getting the required sign on from the states.
This wasn't the only path to locking progressive policies out via the constitution that they pursued. The takeover of SCOTUS with political activists has been much more effective and will give similar results.
Originalism and even textualism require the mistaken idea that our founders even agreed to what the constitution meant. But they did not. Not as they wrote it, nor as the states ratified it. Hence the federalist papers that attempted to sell the new constitution to the public. Two big issues were whether there were implied powers - such as the right to purchase territory (think the Louisiana Purchase). Some thought yes, others no. And whether the constitution would evolve (via case law). Some thought it did, Others did not.
One curiosity is re rights not enumerated. The text of the constitution is clear that there are such rights. Yes modern conservatives mostly dismiss them. They even ignored the reality that abortion was common and the herbs to do it sold publicly.
One non enumerated right is to what we call privacy. Rights against illegal search and seizure, even against torture, as well as the motto, “Don’t Tread on Me” are clearly expressions of what today we think of as privacy. Yet conservatives dismiss such rights.
Jefferson by the way did not believe that the constitution granted the right to purchase property - yet he bought Louisiana anyway. Expedience over principal.
Sorry. I don't feel any better after listening to George Conway. SCOTUS is not only an activist body...it is an advocacy body for Trump. It is so disgustingly transparent that this court is looking to "erase the eraser" in order for Trump to be given every advantage and loophole...and as smooth a flight path as possible to another presidency. I'm sure The Federalist Society is firming up a short list of thirty year old "originalists" to take Alito's and Thomas's places on the bench when they retire shortly after Trump is re-elected.
No. They will postpone it until they after the election. That's why Trump needs to convicted for something and put in jail before the election or he will get away with murder. I mean that literally.
Mitch McConnel said "we have a justice system in this country". How wrong he was. Starting with the delay, assuming Trump would just go away, as a whole, the justice system has granted far too many delaying tactics once the process started. Judge Cannon was allowed obvious bias, Jack Smith overcharging (91 counts?) in the J6 case, responding slowly to the ad holmium attacks on the prosecutor in Georgia, even the (misnamed) hush money case going on now was delayed until this late in the game.
I'm not sure how much this matters to the upcoming election. The body politic underestimated MAGA's effective delays with vapid objections. He can be President even if he is convicted.
The signals from the Supreme Court are very concerning, thank Mitch for holding the position open, not.
I’m not sure it is accurate to refer to “conservatives Justices” anymore, since their willingness to upend precedent and to broaden the scope of what they intend to review is extremism, not conservatism. The DC Circuit decision was clear, straightforward, and consistent with what most of us understood to be the case in this country since we tossed out a “King” over 200 years ago. Thomas should not have been on this case to begin with, and Alito and Gorsuch seem to be exactly what your friend observed about starting with a decision, then constructing a rationale working backwards. I am a retired attorney totally disgusted with the SC for the first time ever.
I am going to re-up a “prayer” I offered a few days ago.
I sincerely hope some investigative journalists are looking into the connections between leonard leo, mitch mcconnell, ginni thomas, clarence thomas and sam alito. They are the tip of the iceberg.
I’m extremely upset about that oral argument. I just wonder what goes on in the justices’ heads that rationalizes upending the rule of law. Do they even hear what they’re saying, especially Alito? Pure nonsense. In the ballot case, all they cared about was consequences and here, whether or not a former president running for president again is guilty of federal crimes isn’t important and certainly nothing the public needs to have resolved before they decide whether to vote for him or not. WTFFF. What universe do they live in?
This was an excellent bit of writing by JVL on the SCOTUS issue.
I would howevever, adjust his argument a bit. When the Republicans stole a SCOTUS seat to secure their 6-3 supermajority on the Court, the Republican justices finally had the votes to inject their radical ideology into binding jurispudence. But this instinct has been evident since the Reagan administration (which is oddly the gold standard administration for every Bulwark contributor with the exception of Saletan).
I'll try to put this into chronological context:
1) Reagan was President from 1981 to 1989. Guess when orginalism became a significant conservative legal philosophy in the U.S.?
1980's. I'll quote directly from the Wikipedia entry:
"The term "originalism" was coined by liberal critic Paul Brest in 1980. It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.
The first originalists on the court were Alito and Thomas, and they would not have a powerful bloc until the three Trump appointees joined the court."
To further my argument that there has been a straight line from Reagan to Trump, Thomas was appointed by the very next Republican president, Bush Sr., and Alito was appointed by the next Republican president after that, Bush Jr.
2) How about textualism? The first proponent of this on SCOTUS was Justice Scalia who was appointed in 1986 by Reagan.
3) 2nd Amendment jurisprudence in particular from SCOTUS Republican judges has brazenly ignored orginalism and textualism, even pre-Trump.
Notwithstanding the fact that the text of the 2nd Amendment explictly parses the right to bear arms, within the context of a "well regulated militia", in Heller (2008) SCOTUS Republicans just ignored that significant chunk of the 2nd amendment's text and held that there is an individual right to bear firearms.
This also violates the principle of orginalism, both because it ignores an important limitation that was intended at the time, but also because a "militia" was the equivalent of what is now the national guard--namely a military force regulated by the state government.
Then in 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, SCOTUS Republicans doubled down and invented a constitutional right to bear arms in public out of thin air.
Also, when it comes to most modern technologies, Republican SCOTUS judges throw their hands in the air and ignore orginalism, under the excuse that this is such a different modern technology that the framers couldn't possibly have fathomed its application to the constitution.
But when it comes to guns, the fact that the framers were literally talking about muskets that took at least 30 seconds to reload was completely ignored; SCOTUS Republicans have no issue applying that to an AR-15 semi-automatic rifle that can fire 45 rounds per minute (closer to 300 on automatic mode).
Also given that the 2nd amendment's text reserves to the right to "bear arms" specifically, it's completely arbitrary to focus on firearms. The dictionary definition of an "arm" in a weapons context is "a means (such as a weapon) of offence or defence". Why doesn't that cover a tank? Rocket launcher? Attack helicopter? Hell, nuclear bomb?
--------------------------------
I'll also add another example to JVL's argument, as I believe the Dobbs decision was the first time the 6-3 majority both openly shat on the principle of respecting prior jurisprudence & simultaneously shat all over orginalism. The former is well known, but the latter tends to be ignored.
Okay, so in Dobbs, pro-choice folks focused their ire on the fact that SCOTUS overturned decades of precedent, focusing instead on the original intent, based on the views on abortion held in 1866 when the 14th amendment was enacted.
Progressive activists just assumed that folks in the 1860's would have clearly been vehemently against abortion.
Problem is that this is not remotely historically accurate. And there's no excuse for progressive activists, much less SCOTUS Justices to be ignorant about the history because Roe v. Wade itself sets out the correct history in the decision (thus adding to the clear disingenuousness and results-oriented nature of the Dobbs decision given that SCOTUS judges should have known the history by just reading the bloody decision they were overturning. Why the liberal justices also ignored the history laid out in Roe, is just puzzling).
In the 1860's both American and English jurisprudence expressly allowed for abortions, up until the point of "quickening", which refered to the point in the pregnancy where it would be possible for the mother or a doctor to feel the fetus' movements.
This typically occurs in the second trimester, as early as 16 weeks into the pregnancy, but more commonly, at the 20 week mark.
Meaning that in the 1800's the common law recognized a legal right to an abortion until that point.
I'll quote again directly from the Wikipedia page on this issue:
"Early U.S. statutes did not prohibit early-term abortions: for the most part, abortion was not a crime until quickening, and most exceptions to this in practice were penalties imposed on practitioners if a woman under their care died as a consequence of the procedure. Within the context of a sex scandal, Connecticut became the first state to regulate abortion by statute in 1821. Many states subsequently passed various abortion laws. In 1829, New York made post-quickening abortions a felony and pre-quickening abortions a misdemeanor. This was followed by 10 of the 26 states [i.e. a minority of U.S. States] creating similar restrictions within the next few decades, in particular by the 1860s and 1870s. The first laws related to abortion were made to protect women from real or perceived risks, and those more restrictive penalized only the provider."
"3. The common law: It is undisputed that, at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy -- was not an indictable offense. The absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth."
Sigh, at the end of the day I really wish Americans could set aside their instinctive jingoism so that they can wake-up to the fact that there is no rule of law in the United States anymore.
Damn (Saturday's on the Bulwark are slow), so i've read through 400 plus comments and reread the first section of yesterday/s Triad. It/they were every bit as good as i remember them to be.
Unfortunately they all took me back some 48 years ago when i first sat in a room of people and needed to introduce myself: "Hi, i'm Bill and i'm an alcoholic." It was truly some hard shit to get past. As i read the Triad yesterday, it was deja vu all over again: "Hi, i'm JVL and i'm a conservative." It had to be tough. I guess that's all that "rigorous honesty stuff."
As tough as that was (admitting i was lost), the future was more daunting. The big book and AA saved my ass and my life. Recovering conservatives don't have the same help available, at least not as readily apparent. Perhaps the closest thing is The Bulwark. Oddly, they offer some cool self-help for those of us with a more liberal bent as well. Go figure.
One final note, i posted the link from the Triad to a right-leaning independent site i read every day. I asked the three writers to read it and share their thoughts. Nary a peep. That surprised me. I guess admitting ones faults isn't as easy as i had hoped, or perhaps they just disagree. We'll see if they comment in the next couple of days.
JVL, I have been following you for a while now—yes another progressive —and so far you have been right about everything. So yes I am very worried about what this court will do.
Yes, the Court is political, it always has been. But the Court has not always been corrupt, now it is. There is the obvious corruption of Thomas, but the real problem lies elsewhere, this Court is lawless. Here is a great Josh Marshall gift link on the corrupt reasoning in the immunity case
Originalism and textualism illustrate the corruption. Yes, the whole 'original public meaning' edifice is political, it is obviously small c conservative. It fixes the constutitution in amber tied forever to a public meaning that can never be truly known, because that public is gone. But is it not corrupt if its adherents are willing to stick with it. Formal legal analysis still matters and carries the day against personal preference.
It turns out the principles are cover, results come first. An unprincipled Court is a corrupt Court. It does not do law, it rules. Faced with a choice between beings kings and being judges a majority of the Court prefer to be kings.
I have never read a clearer formal legal analysis than J. Michael Luttig and Laurence H. Tribe's The Constitution Prohibits Trump From Ever Being President Again
You need to distinguish academics like Michael Stokes Paulsen, who came up with the originalist theory to DQ Trump, from both right wing radio/TV hacks and the supposed originalists on the Court. I’m not sure if getting on the Court makes a person less academic and more pragmatic or if having the ambition needed to get on the Court makes a person more malleable or a bit of both.
"In Stuart’s view, conservatives had a bunch of groups they disfavored and then worked backwards to concoct an ideological framework to support these prejudices. "
So essentially a reframing of Wilhoit's law: Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
Oddly, I think Trump voters, (not all of them but enough), have been convinced that Wilhoit was speaking of liberalism/Democrats/progressives. Their view of the US seems to be that everyone else BUT them get all the breaks, and their Orange God is going to rectify that and punish those who helped cause it pr took advantage of it.
So @jvlast, I will never forget when Charlie interviewed George Will a few years ago and GW said (paraphrasing) "I've always been staunchly opposed to legislating from the bench but now I'm coming around to the merits of it". This was just after Mitch rammed ACB onto SCOTUS for the hat trick - coincidental, I'm sure.
The conservative movement has been trying to convene a constitutional convention for decades now with the goal of rewriting the US Constitution to enshrine right-wing preferences and prohibit any progressive measures from being instituted. They have failed so far, though they have come close to getting the required sign on from the states.
This wasn't the only path to locking progressive policies out via the constitution that they pursued. The takeover of SCOTUS with political activists has been much more effective and will give similar results.
Originalism and even textualism require the mistaken idea that our founders even agreed to what the constitution meant. But they did not. Not as they wrote it, nor as the states ratified it. Hence the federalist papers that attempted to sell the new constitution to the public. Two big issues were whether there were implied powers - such as the right to purchase territory (think the Louisiana Purchase). Some thought yes, others no. And whether the constitution would evolve (via case law). Some thought it did, Others did not.
One curiosity is re rights not enumerated. The text of the constitution is clear that there are such rights. Yes modern conservatives mostly dismiss them. They even ignored the reality that abortion was common and the herbs to do it sold publicly.
One non enumerated right is to what we call privacy. Rights against illegal search and seizure, even against torture, as well as the motto, “Don’t Tread on Me” are clearly expressions of what today we think of as privacy. Yet conservatives dismiss such rights.
Jefferson by the way did not believe that the constitution granted the right to purchase property - yet he bought Louisiana anyway. Expedience over principal.
Sorry. I don't feel any better after listening to George Conway. SCOTUS is not only an activist body...it is an advocacy body for Trump. It is so disgustingly transparent that this court is looking to "erase the eraser" in order for Trump to be given every advantage and loophole...and as smooth a flight path as possible to another presidency. I'm sure The Federalist Society is firming up a short list of thirty year old "originalists" to take Alito's and Thomas's places on the bench when they retire shortly after Trump is re-elected.
No. They will postpone it until they after the election. That's why Trump needs to convicted for something and put in jail before the election or he will get away with murder. I mean that literally.
Mitch McConnel said "we have a justice system in this country". How wrong he was. Starting with the delay, assuming Trump would just go away, as a whole, the justice system has granted far too many delaying tactics once the process started. Judge Cannon was allowed obvious bias, Jack Smith overcharging (91 counts?) in the J6 case, responding slowly to the ad holmium attacks on the prosecutor in Georgia, even the (misnamed) hush money case going on now was delayed until this late in the game.
I'm not sure how much this matters to the upcoming election. The body politic underestimated MAGA's effective delays with vapid objections. He can be President even if he is convicted.
The signals from the Supreme Court are very concerning, thank Mitch for holding the position open, not.
I’m not sure it is accurate to refer to “conservatives Justices” anymore, since their willingness to upend precedent and to broaden the scope of what they intend to review is extremism, not conservatism. The DC Circuit decision was clear, straightforward, and consistent with what most of us understood to be the case in this country since we tossed out a “King” over 200 years ago. Thomas should not have been on this case to begin with, and Alito and Gorsuch seem to be exactly what your friend observed about starting with a decision, then constructing a rationale working backwards. I am a retired attorney totally disgusted with the SC for the first time ever.
I am going to re-up a “prayer” I offered a few days ago.
I sincerely hope some investigative journalists are looking into the connections between leonard leo, mitch mcconnell, ginni thomas, clarence thomas and sam alito. They are the tip of the iceberg.
I’m extremely upset about that oral argument. I just wonder what goes on in the justices’ heads that rationalizes upending the rule of law. Do they even hear what they’re saying, especially Alito? Pure nonsense. In the ballot case, all they cared about was consequences and here, whether or not a former president running for president again is guilty of federal crimes isn’t important and certainly nothing the public needs to have resolved before they decide whether to vote for him or not. WTFFF. What universe do they live in?
This was an excellent bit of writing by JVL on the SCOTUS issue.
I would howevever, adjust his argument a bit. When the Republicans stole a SCOTUS seat to secure their 6-3 supermajority on the Court, the Republican justices finally had the votes to inject their radical ideology into binding jurispudence. But this instinct has been evident since the Reagan administration (which is oddly the gold standard administration for every Bulwark contributor with the exception of Saletan).
I'll try to put this into chronological context:
1) Reagan was President from 1981 to 1989. Guess when orginalism became a significant conservative legal philosophy in the U.S.?
1980's. I'll quote directly from the Wikipedia entry:
"The term "originalism" was coined by liberal critic Paul Brest in 1980. It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.
The first originalists on the court were Alito and Thomas, and they would not have a powerful bloc until the three Trump appointees joined the court."
https://en.wikipedia.org/wiki/Originalism#:~:text=The%20term%20%22originalism%22%20was%20coined,in%20the%20conservative%20legal%20movement.
To further my argument that there has been a straight line from Reagan to Trump, Thomas was appointed by the very next Republican president, Bush Sr., and Alito was appointed by the next Republican president after that, Bush Jr.
2) How about textualism? The first proponent of this on SCOTUS was Justice Scalia who was appointed in 1986 by Reagan.
3) 2nd Amendment jurisprudence in particular from SCOTUS Republican judges has brazenly ignored orginalism and textualism, even pre-Trump.
Notwithstanding the fact that the text of the 2nd Amendment explictly parses the right to bear arms, within the context of a "well regulated militia", in Heller (2008) SCOTUS Republicans just ignored that significant chunk of the 2nd amendment's text and held that there is an individual right to bear firearms.
This also violates the principle of orginalism, both because it ignores an important limitation that was intended at the time, but also because a "militia" was the equivalent of what is now the national guard--namely a military force regulated by the state government.
Then in 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, SCOTUS Republicans doubled down and invented a constitutional right to bear arms in public out of thin air.
Also, when it comes to most modern technologies, Republican SCOTUS judges throw their hands in the air and ignore orginalism, under the excuse that this is such a different modern technology that the framers couldn't possibly have fathomed its application to the constitution.
But when it comes to guns, the fact that the framers were literally talking about muskets that took at least 30 seconds to reload was completely ignored; SCOTUS Republicans have no issue applying that to an AR-15 semi-automatic rifle that can fire 45 rounds per minute (closer to 300 on automatic mode).
Also given that the 2nd amendment's text reserves to the right to "bear arms" specifically, it's completely arbitrary to focus on firearms. The dictionary definition of an "arm" in a weapons context is "a means (such as a weapon) of offence or defence". Why doesn't that cover a tank? Rocket launcher? Attack helicopter? Hell, nuclear bomb?
--------------------------------
I'll also add another example to JVL's argument, as I believe the Dobbs decision was the first time the 6-3 majority both openly shat on the principle of respecting prior jurisprudence & simultaneously shat all over orginalism. The former is well known, but the latter tends to be ignored.
Okay, so in Dobbs, pro-choice folks focused their ire on the fact that SCOTUS overturned decades of precedent, focusing instead on the original intent, based on the views on abortion held in 1866 when the 14th amendment was enacted.
Progressive activists just assumed that folks in the 1860's would have clearly been vehemently against abortion.
Problem is that this is not remotely historically accurate. And there's no excuse for progressive activists, much less SCOTUS Justices to be ignorant about the history because Roe v. Wade itself sets out the correct history in the decision (thus adding to the clear disingenuousness and results-oriented nature of the Dobbs decision given that SCOTUS judges should have known the history by just reading the bloody decision they were overturning. Why the liberal justices also ignored the history laid out in Roe, is just puzzling).
In the 1860's both American and English jurisprudence expressly allowed for abortions, up until the point of "quickening", which refered to the point in the pregnancy where it would be possible for the mother or a doctor to feel the fetus' movements.
This typically occurs in the second trimester, as early as 16 weeks into the pregnancy, but more commonly, at the 20 week mark.
https://my.clevelandclinic.org/health/symptoms/22829-quickening-in-pregnancy
Meaning that in the 1800's the common law recognized a legal right to an abortion until that point.
I'll quote again directly from the Wikipedia page on this issue:
"Early U.S. statutes did not prohibit early-term abortions: for the most part, abortion was not a crime until quickening, and most exceptions to this in practice were penalties imposed on practitioners if a woman under their care died as a consequence of the procedure. Within the context of a sex scandal, Connecticut became the first state to regulate abortion by statute in 1821. Many states subsequently passed various abortion laws. In 1829, New York made post-quickening abortions a felony and pre-quickening abortions a misdemeanor. This was followed by 10 of the 26 states [i.e. a minority of U.S. States] creating similar restrictions within the next few decades, in particular by the 1860s and 1870s. The first laws related to abortion were made to protect women from real or perceived risks, and those more restrictive penalized only the provider."
https://en.wikipedia.org/wiki/Abortion_in_the_United_States#:~:text=Early%20U.S.%20statutes%20did%20not,a%20consequence%20of%20the%20procedure.
I'll also quote directly from Roe v. Wade:
"3. The common law: It is undisputed that, at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy -- was not an indictable offense. The absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth."
Sigh, at the end of the day I really wish Americans could set aside their instinctive jingoism so that they can wake-up to the fact that there is no rule of law in the United States anymore.
Damn (Saturday's on the Bulwark are slow), so i've read through 400 plus comments and reread the first section of yesterday/s Triad. It/they were every bit as good as i remember them to be.
Unfortunately they all took me back some 48 years ago when i first sat in a room of people and needed to introduce myself: "Hi, i'm Bill and i'm an alcoholic." It was truly some hard shit to get past. As i read the Triad yesterday, it was deja vu all over again: "Hi, i'm JVL and i'm a conservative." It had to be tough. I guess that's all that "rigorous honesty stuff."
As tough as that was (admitting i was lost), the future was more daunting. The big book and AA saved my ass and my life. Recovering conservatives don't have the same help available, at least not as readily apparent. Perhaps the closest thing is The Bulwark. Oddly, they offer some cool self-help for those of us with a more liberal bent as well. Go figure.
One final note, i posted the link from the Triad to a right-leaning independent site i read every day. I asked the three writers to read it and share their thoughts. Nary a peep. That surprised me. I guess admitting ones faults isn't as easy as i had hoped, or perhaps they just disagree. We'll see if they comment in the next couple of days.
JVL, I have been following you for a while now—yes another progressive —and so far you have been right about everything. So yes I am very worried about what this court will do.
Yes, the Court is political, it always has been. But the Court has not always been corrupt, now it is. There is the obvious corruption of Thomas, but the real problem lies elsewhere, this Court is lawless. Here is a great Josh Marshall gift link on the corrupt reasoning in the immunity case
https://talkingpointsmemo.com/edblog/peering-into-the-corrupt-courts-pretensions-and-corruption/sharetoken/eNIH6h22AS7b
Originalism and textualism illustrate the corruption. Yes, the whole 'original public meaning' edifice is political, it is obviously small c conservative. It fixes the constutitution in amber tied forever to a public meaning that can never be truly known, because that public is gone. But is it not corrupt if its adherents are willing to stick with it. Formal legal analysis still matters and carries the day against personal preference.
It turns out the principles are cover, results come first. An unprincipled Court is a corrupt Court. It does not do law, it rules. Faced with a choice between beings kings and being judges a majority of the Court prefer to be kings.
I have never read a clearer formal legal analysis than J. Michael Luttig and Laurence H. Tribe's The Constitution Prohibits Trump From Ever Being President Again
https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/
Compare its reasoning to the Court's and it is plain. This Court doesn't do law. At least not when key Republican priorities are at stake.
"Only sick people take pills"
"If I stop taking my pills then I won't be sick"
-Short summary logic of the immunity-curious wing of SCOTUS
You need to distinguish academics like Michael Stokes Paulsen, who came up with the originalist theory to DQ Trump, from both right wing radio/TV hacks and the supposed originalists on the Court. I’m not sure if getting on the Court makes a person less academic and more pragmatic or if having the ambition needed to get on the Court makes a person more malleable or a bit of both.
"In Stuart’s view, conservatives had a bunch of groups they disfavored and then worked backwards to concoct an ideological framework to support these prejudices. "
So essentially a reframing of Wilhoit's law: Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
Oddly, I think Trump voters, (not all of them but enough), have been convinced that Wilhoit was speaking of liberalism/Democrats/progressives. Their view of the US seems to be that everyone else BUT them get all the breaks, and their Orange God is going to rectify that and punish those who helped cause it pr took advantage of it.