The short answer is: nothing that we didn’t already know.
I started reading SCOTUS rulings three or four years ago, and I’d recommend that all of you should do that. They’re not nearly as difficult to follow as I’d assumed they’d be for non-lawyer doofus like me.
And if you’re a fan of clear thinking and clear writing, they provide a variety of great examples of how to construct persuasive arguments, and how not to. (Read some rulings from Sotomayor and Brown-Jackson for the latter, and you’ll have the same amount of faith in SCOTUS justices as you do in Tony Fauci, “50 top intelligence officials,” and the Southern Poverty Law Center.)
I will acknowledge that I’m biased in favor of the originalist approach – try very hard to determine the original meaning of the laws in question, and bind yourself to that, regardless of your own political priors – vs the “living constitution” lefty alternative – look for ways to interpret the laws such that your own political preferences will be advanced.
Many people would say that those are not fair descriptions of the two positions. But I think I’ve given a lot of examples and details to back them up in my past columns on various SCOTUS decisions: Roe v. Wade and Dobbs v. Jackson (on abortion); Loper Bright Enterprises v. Raimondo (overturning Chevron deference); Obergefell (gay marriage); NY State Rifle and Pistol Association v. Bruen (2nd amendment), and various district judges whose anti-Trump rulings (on executive power, DOGE, immigration, use of EOs, and just about everything else) have been overturned by appellate courts or SCOTUS, etc. And many actual expert legal analysts have provided tons more examples in many articles and books.
The reason I’ve become an originalist is that IMHO, those positions are generally very carefully reasoned, with copious references to specific textual language, backed up by specific examples from other cases and historical precedence. The “living constitution” rulings tend to move away from textual specifics, concrete arguments, and relevant citations, in favor of anecdotes, political lectures and desired political outcomes. (Again, read anything from Ketanji Jackson; she sounds more like a petulant activist on Bluesky than a judge, and even Sotomayor and Kagan have slapped back at her in the last couple of years.)
The lefty justices go very heavy on emotional argumentation and reading into the motivations of lawyers and judges they disagree with. And even when arguments necessarily rely in part on more abstract logic or common sense (in addition to statutory language), the lefty judges continually demonstrate a less than firm grip on either.
One example from last week – this one came not from SCOTUS, but from District Court judge Amy Berman Jackson – was a ruling to block Trump’s steps toward banning the use of SNAP (food stamps) funds to buy sugary soda. Never mind that the USDA which ultimately oversees SNAP is an executive agency, this judge doesn’t think the chief executive (if he’s orange, at least) should have any say over what executive agencies do.
By the way, Berman-Jackson is an Obama appointee. Unexpectedly!
Now I’m no more a nutritionist than I am a lawyer. But just off the top of my head – using only my crystal brain and common sense – I can lay out the case for preventing taxpayer money being used to buy soda for SNAP recipients. (In addition to the fact that the executive branch is in charge of executive branch agencies, I mean.)
I know without looking at it that the statutory language originating the food stamp program is full of verbiage about the need for nutritious food. I also know that no legitimate nutritionist or doctor would say that sugary sodas are nutritious, or that their consumption does not increase the chance of obesity. I also know that obesity is one of the top health problems for Americans, and that it is even more common among welfare recipients who get SNAP.
So even someone with an AOC-level IQ understands that our tax dollars should not be used to make fat welfare recipients even fatter. But Trump wants to stop that. So the AWFL Obama-appointed judge has to do her part to ensure that your money be confiscated and given to famine-resistant welfarians to further their dreams of going full dirigible at your expense.
Try to find that right enumerated in the constitution. I’ll wait.
Another example that the leftists on SCOTUS are allergic to common sense: last Thursday’s ruling in Mullin v. Al Otro Lado, in which Alito had to explain that immigrants whom the law says must be in the US to claim asylum must actually be…in the US to claim asylum.
I’m not making that up. The lefties argued that an immigrant who arrives at the border (but doesn’t cross it) should be considered to be “in the US.” Therefore, they should be able to claim asylum, and enter and stay in the country until that claim has been ruled on.
Never mind the actual reality, which is that the vast majority of asylum claims are bogus and eventually denied (unless a Dem is in office, in which case they are almost never even adjudicated). Alito patiently explained that arriving AT a border is not the same as having crossed that border, just like knocking at your door is not the same thing as being inside your house.
And the three leftist justices either pretended not to understand that, or actually did not understand that.
Yikes!
Okay, on to the one case from last Thursday that I found most interesting, and most emblematic of the differences between originalists and living constitutionalists. The case is Mullin v. Doe, and it upheld Trump’s attempt to end Temporary Protected Status (TPS) from migrants from Haiti and Syria.
The ruling was 6-3 (Unexpectedly!), with Alito writing the opinion, and Kagan the dissent.
The summary (SCOTUS rulings call it a “synopsis”) is only 2 pages, and gives a clear overview of the question, the competing arguments, and the rationale for the ruling.
Alito’s ruling is 24 pages, but the crucial part only takes him about 4 paragraphs. He starts by quoting the TPS’ originating language: “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
Even though Alito goes on to parse the specific language here – he cites the definition of “determination” in the OED and three other, American dictionaries, for example – he first follows the quote above with the obvious observation: “This text is clear, and its plain meaning is very broad.”
Indeed it is. But the leftists fighting the issue still cover their eyes and ears and ramble through a series of ridiculous claim that the TPS charter doesn’t actually say and mean what it obviously says and means.
In response, Alito enumerates the left’s arguments before taking them apart at the joint, setting the demolition up with a curt statement that, “Respondents and the courts below offer several theories to overcome the plain meaning of the judicial-review bar, but none is sound.”
One example of Alito taking the scalpel to the leftist arguments involves the issue of Trump’s supposed racist motivation for ending TPS, as seen in his comments on Haiti being a “sh*thole country. (The legal cliché, “The truth is an absolute defense” just popped into my mind, for some reason.)
Alito responds on page 22: “Ironically, both [the plaintiffs’ lawyers] identify a strong, race-neutral explanation of these officials’ statements: the present administration’s general stance on immigration and its obvious antipathy toward past administrations’ TPS policies.” He points out that so far, 13 TPS designations have come up for renewal during Trump’s second term, and his DHS has ended TPS in each of those cases.
He then goes on to list the nations with TPS status that Trump has ended, some of which are Asian, Central Asian, South American, or Central American, as well as African. He dryly notes, “Most would regard this as a racially diverse group of countries….”
Yep.
Kagan writes the dissent, joined by the two other lefties on the court, and spends the majority of her case arguing why the “TPS is not open to judicial review” language doesn’t actually mean that, and also that Trump’s boorish comments about Haiti show that his only possible motivation is racism, despite the fact that Alito dispositively disposed of that claim.
And then she closes by making emotional, heartstring-tugging appeals through anecdotes about the specific plaintiffs. The Haitian guy has held TPS for 15 years, works in a lab researching Alzheimer’s, and has diabetes. The Syrian lady has been here for 13 years, has a job working with disabled people and taking care of her elderly mom. Also, she fears that her 17-year-old daughter will have a tough time in Syria because she speaks little Arabic.
As with so many of the leftist arguments, those have nothing to do with the law, which should be the substance of any SCOTUS case. Personal anecdotes aren’t supposed to decide legal issues; if they did, each ruling would be thousands of pages long, with both sides compiling emotional stories of affected individuals.
The giveaway proving that the leftist justices are essentially activists in robes is that just like partisan lefties in Congress and the media, they NEVER recount emotional anecdotes that don’t support their own political preferences. They’ll talk about how much the Haitian guy and Syrian gals’ lives will be disrupted by sending them home after they’ve been here for so long – without realizing that that is a great reason to NOT allow temporary protection to turn into long-term/permanent protection! And they’ll try to turn Pretti, Good and George Floyd, etc. into innocent martyrs.
But they’ll never talk about Laken Riley, Jocelyn Nungaray, or the hundreds of thousands of innocent Americans assaulted, robbed or murdered by immigrants, many of them here on TPS, or about taxpaying American citizens being forced to spend untold billions on allowing foreigners to enter and stay in our country, in contravention of our laws.
Thankfully, in the last few years a majority of SCOTUS justices have staying out of the legislating business. However, I’m still bracing myself for the upcoming ruling on birthright citizenship, which ought to be overturned, but almost certainly won’t be.
Still, SCOTUS has been doing the right thing lately.
Not because most of their rulings have agreed with my political preferences, but because they have been following our laws as written.
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