In 1978 the movie “The Boys From Brazil” was released. It had an all-star cast that included Gregory Peck, Laurence Olivier, James Mason and others. The plot revolved around the cloning of infants from genetic material obtained from Adolf Hitler. I thought that the plot was farfetched until I learned about the Federalist Society.
Leonard Leo is currently the Co-Chairman of the Federalist Society. The Federalist Society is a right-wing organization dedicated to stacking the Federal Judiciary with zealots determined to undo all modern day concepts of constitutional interpretation. Leo served as Vice-President of the Society and created a fundraising network of affiliated not-for-profit organizations funded by anonymous donors. One of these, the Marble Freedom Trust was the recipient of a 1.6 billion dollar from an Illinois businessman.
The Federalist Society was founded in 1982 during the administration of Ronald Reagan. At that time Robert Bork, Antonin Scalia, Reagan’s Attorney-General Edwin Meese and Supreme Court Justice, William Rehnquist were espousing a theory called “Originalism” as a counter to the theory of a “Living Constitution” which involved interpreting of the Constitution in the context of modern day issues. Originalism purports to analyze and apply constitutional principles in the way they would have been understood by the original framers. Prior to 1982 there was no mention of Originalism being applied or mentioned in Supreme Court decisions .Originalism, in reality, is a fig leaf designed to justify the reversal of such concepts as the Fourteenth Amendment “Right to Privacy” which underpins the right to an abortion, contraception, same-sex marriage and the voiding of gay sex prohibitions, all issues decided during the 20th and 21st centuries. It has further advanced the voiding of firearm restrictions on licensing automatic weapons and other measures designed to protect the public and school children from mass shootings. In sum, the application of Originalism by the current Supreme Court has resulted in the Constitution and its historical protections to having no more current relevance than the Cretan hieroglyphs.
An additional method of constitutional interpretation that arose along with Originalism is one called “Textualism.” This method involves focusing on the plain meaning of the text and how the terms would have been understood by the public at the time of ratification of the Constitution and its amendments. Like Originalism this provides an alternate way to roll back the modern day protections afforded by the Supreme Court pursuant to the living Constitution interpretation.
With the addition of the three Trump appointed Justices, Gorsuch, Kavanaugh and Comey- Barrett to the Court on which Roberts, Thomas and Alito already sat, there is now a majority of justices who purport to subscribe to either the theory of Originalism or Textualism or both. This majority, despite their confirmation hearing testimony promising to adhere to the principle of stare decisis,( which means to follow the decisions that have been repeatedly been affirmed during prior terms), have repeatedly reversed and nullified protections guaranteed by a long-standing line of cases involving the right to privacy.
Roe v. Wade, decided in 1973, and reaffirmed repeatedly throughout the next 45 years, was reversed and the right to obtain an abortion even under the most egregious circumstances was nullified. Justice Thomas, in a concurring opinion, declared that the Court should now re-examine all of its previous right to privacy decisions involving contraception, same-sex marriage and sex between consenting adults in private settings.
In District of Columbia v. Heller the Court held that the Second Amendment guaranteed an individual right to possess a firearm, ignoring a history of cases holding that the right applied in the context of a “well-regulated militia” as set forth in the language of the amendment itself. In 2022, the Court invalidated a New York State law regulating permits for concealed carry firearms in public that had been in existence for 111 years. Justice Thomas’s opinion held that the Sullivan Law had to be evaluated in the context of the understanding at the time of the framers enshrined it in the Constitution. Needless to say, the framers never contemplated the invention of submachine guns, AR 15’s and other automatic weapons or pistols with expanded magazines.
Most recently in Trump v. United States, the majority on the Court, for the first time, decided that a President of the United States could be immune from criminal prosecution for crimes committed while in office. These “Originalists” and “Textualists”, ignored the language in the Impeachment Clause which holds a president is liable for criminal prosecution after impeachment and removal from office. Likewise, that nowhere in the Constitution or in the papers of the framers is the prospect of presidential immunity mentioned.
Chief Justice Roberts in the opinion, joined by the new majority, announced a harebrained Rube Goldberg formula for which presidential conduct must be evaluated and he further prohibited evidence of official acts even when they illuminated the criminal intent of the president’s conduct. In short, at a time in which a former president charged in multiple indictments containing breathtaking criminality and is trying to return to office, he cannot for all practical purposed be prosecuted for this conduct.
Prior to the existence of the Federalist Society, Supreme Court Justices were selected based upon either extensive legal experience, public service or a combination of both. The result was the confirmation of legal giants like Louis Brandeis, Earl Warren, Thurgood Marshall, Lewis Powell, John Paul Stevens, Ruth Bader Ginsberg and the like. Now, with the Federalist Society and its incubation of right wing judicial appointees, we have a selection of nominees predicated on ideological purity and longevity.
The result, is that we have a Supreme Court composed of a majority of well-educated morons.