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John McGinnis Reviews "Nine Black Robes" by Joan Biskupic
Michael Ramsey

At Law & Liberty, John McGinnis: Misreading the Court.  From the introduction:

... [T]he Court’s opinions are necessarily refracted for most citizens through journalists and academics, almost all of whom today are hostile to its views and to the justices in the majority. As a result, the current Court majority has far more difficulty than past Courts in putting its case to the American people.

Joan Biskupic’s Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences exemplifies the many ways that journalists today hinder the transmission of the Roberts Court’s ideas. Despite presenting itself as an account of the Court’s development since 2016, the book rarely describes the jurisprudential wellsprings behind the Court’s decisions, and when it does describe them, it is incorrect and biased. It also flattens and caricatures the justices most frequently in the majority as political actors who are moving the law in the direction of their political patrons. It also tends to personalize the justices’ disagreements, rather than recognizing the profound and legitimate contests over the nature of law.

The Roberts Court reflects the rise of originalism. Three of the justices—Thomas, Gorsuch, and Barrett—are originalists; Kavanaugh is likely an originalist; Alito is a self-described “practical originalist”; and Roberts has originalist sympathies. That does mean that in every case they will decide according to the original meaning: there is too much precedent in many areas to return fully to the original meaning of a provision. Nevertheless, by distinguishing and limiting non-originalist precedents, they do not infrequently move toward their view of original meaning.

Yet Biskupic does not explain the jurisprudential context. She rarely mentions originalism and when she does she gets it tendentiously wrong. For instance, she defines the “originalist approach as reading the Constitution in terms of its eighteenth-century understanding.” Originalism in fact asserts that the public meaning of a provision should be interpreted as it was fixed at the time it was adopted—a very different matter. First, what is relevant under originalism is not some diffuse understanding as Biskupic suggests, but the public meaning of its provisions. Second, the relevant time for fixing the meaning is the year that the provision at issue was adopted. Thus, not only is the meaning of the original Constitution fixed at a particular time—1789 specifically, not “the eighteenth century” generally—but subsequent provisions, like the Fourteenth Amendment, are fixed at the time that the Constitution was amended. Her definition makes originalism seem necessarily murkier than it is, and it also slights the important, more recent amendments—when we the people have exercised our enduring authority to change the Constitution. ...