The Supreme Court power grab:

In a November essay for the Harvard Law Review, the Stanford Law School professor Mark A. Lemley describes this Court as an “imperial” one that has embarked on “a radical restructuring of American law across a range of fields and disciplines.” The means run along two lines: substantive changes to the Constitution made under the guise of interpretation, and procedural power grabs executed despite traditions of deference. This has pushed our constitutional system dangerously off balance, with little opportunity for correction.

Ironically, the danger comes from the “conservative” wing of the Court, born in part out of a purported rejection of “activist” court decisions, which it criticizes as policy making—territory that belongs to the elected branches of government. All six of the purportedly conservative justices—Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have professed a commitment to textualism and originalism, methods of constitutional interpretation that theoretically should constrain judges’ discretion to the “plain” language of the text, with occasional reference to historical understandings of the Framers’ contemporaneous intent. Many folks blithely assume that the right-wing justices are more restrained than their progressive counterparts as a result. The precise opposite is the case.

Another one of those irregular verb items. When they do it it’s activism, when we do it it’s restraint.

Neither textualism nor originalism can possibly answer every thorny question about the ambiguous language that fills the relatively terse, 236-year-old constitutional text. Judges judge, after all—meaning they exercise discretion, often subjectively. For example, in both Dobbs and the controversial Second Amendment decision in New York State Rifle & Pistol Association v. Bruen, which permanently clipped the power of states to regulate public safety with regard to guns, Justices Alito and Thomas in their respective majority opinions picked and chose snippets of history that favored one outcome while rejecting others, and offered no guiding principle for deciding which “originalist” evidence is worthy of deference and which is not. 

The guiding principle is intuition. Fortunately their intuitions are infallible.

This is not how it is supposed to work. A too-powerful, unaccountable Court is a threat to the entire system. Short of a constitutional amendment retracting their life tenure, or a filibuster-proof majority in the Senate willing to do controversial things such as restricting the Court’s jurisdiction or expanding the number of justices, there’s nothing the voting public can really do about this political power grab and its lasting impact on the lives of millions.

It’s Clarence Thomas’s world and we’re just tenants.