News bit: Radical right legal tactics update

CONTEXT

Textualism is the ruse that the radical right says it often uses to analyze laws passed by congress and legislatures. Originalism is the ruse that American radical right authoritarians sometimes use to interpret the Constitution. Originalism is interpretation of a written constitution or law allegedly based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Experts constantly point out that finding original intent is impossible because both the drafters of the constitution and average people were deeply divided. 

Originalism sells itself as a way of constraining judges. But it’s more often a way of unleashing their partisan impulses and party loyalty. Originalism is related to textualism, which focuses mostly on the words instead of intent. The radical right relies on either alone or in combination to arrive at partisan decisions. 

The major questions doctrine holds that courts should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” The Supreme Court justifies this limitation with the non-delegation doctrine. The nondelegation doctrine seeks to distinguish the constitutional delegations of power to other branches of government that may be necessary for governmental coordination from unconstitutional grants of legislative power that may violate separation of powers principles. The radical right is leveraging the major questions doctrine to get outcomes that the controlling political dogmas demand.

Hypocrisy in legal reasoning

A Washington Monthly article discusses the unprincipled nature of legal reasoning by radical right authoritarian ideologue judges. This point has been raised by a number of legal experts who pay close attention to the state and federal courts, including the US Supreme Court. WM writes: 

With the rise of the “major questions” doctrine, conservatives' invocation of “textualism” has been exposed as hypocrisy.

Conservatives claim “textualism” is the only defensible approach to analyzing and applying a legal text. The term emphasizes the “plain meaning” of the text of a legal document and rejects the use of legislative history and other contextual resources to clarify vague or confusing language. Perhaps not surprisingly, this approach almost always leads to conservative outcomes cloaked in a veneer of neutrality. But with the rise of the “major questions” doctrine, we can now see that “textualism” is synonymous with hypocrisy. The doctrine, which requires that agencies receive explicit direction from Congress to address a particular issue, gives the Court’s conservative supermajority a tool to achieve their preferred outcomes when textualism doesn’t get them there.

Here’s an example. It’s clear from oral arguments in the student loan case that the Supreme Court heard last month that textualism wouldn’t allow the panel’s conservatives to kill the administration’s plan, which provides relief to millions of post-secondary students.

That the loan relief costs a lot of money must mean that Congress had not actually authorized it, contended Chief Justice John Roberts at the arguments. But by passing a 2003 law signed by President George W. Bush, Congress authorized the education secretary to address emergencies. The Higher Education Relief Opportunities for Students Act, known as the HEROES Act, states explicitly that the secretary of education may “waive or modify any statutory or regulatory provision” to help loan recipients affected by “a war or other military operation or national emergency.” As Justice Elena Kagan said at the arguments, “Congress could not have made this much more clear,” adding, “We deal with congressional statutes every day that are really confusing. This one is not.” Even Justice Brett Kavanaugh admitted that “waive” is “an extremely broad word,” and “in 2003, Congress was very aware of potential emergency actions in the wake of September 11.”

The late Justice Antonin Scalia was perhaps the foremost advocate for “textualism,” arguing that it would provide more “certainty in the law, and hence greater predictability and greater respect for the rule of law.” Scalia allowed that judges could consult dictionaries and use linguistic “canons of statutory construction” to elucidate vagueness but insisted that textualism was the only way to avoid judicial encroachment on legislative terrain.

Contrary to Scalia’s drivel, the unprincipled, often irrational way the American radical right interprets the Constitution and laws provides less certainty in law, less predictability and less respect for the law. The problem arises mostly from a mix of (i) authoritarian radical right ideology, (ii) open contempt for and rejection of inconvenient facts, true truths and sound reasoning (e.g., the anti-woke movement), and (iii) disrespect for secular democracy, civil liberties, and principled rule of law. 

By its actions, the radical right has made it clear and undeniable that it will remake the law according to its corrupt radical authoritarian-theocratic dogmas. Talk of principled originalism and textualism is just a smoke screen to deflect from the morally bankrupt intellectual basis of what the radical right is, corrupt, authoritarian and theocratic. What it wants to do to American society, democracy, civil liberties, governance and inconvenient truth and history is not what most Americans support.