Foremost Supreme Court expert reveals how it has 'descended into parody'

With conservatives enjoying a 6-3 supermajority on the U.S. Supreme Court, the Republican-appointed justices have been pledging their allegiance to "originalism" — a judicial doctrine aggressively promoted by the late Justice Antonin Scalia. But according to journalist Linda Greenhouse — known for the 30 years she spent covering SCOTUS for the New York Times — "originalism" has lost its way on the High Court.

"Among all the developments of a confounding Supreme Court term," Greenhouse argues in the Times, "there is one that hasn't received the attention it deserves. This was the term when the Court's obsession with 'originalism' descended into parody. A vaunted method of constitutional interpretation that conservatives unleashed during the Reagan era, originalism is supposed to constrain judges by placing them firmly in history's grip. Justice Brett Kavanaugh expressed the assumption behind the theory a few years ago: 'History is far less subjective than policy.'"

But Greenhouse, in her analysis, poses the question: "How objective is history, really?"'

Greenhouse makes her point by referencing the High Court's ruling in United States v. Hemani, decided on June 18.

"Imagine a young man, living with his parents in the Dallas area, who has a steady job and who, like many Texans, keeps a gun at home," Greenhouse explains. "He also, a few times a week, uses marijuana. It happens that a federal law known as Section 922(g)(3) makes it a crime for an 'unlawful user' of a 'controlled substance' to own a gun. The penalty for violating this little-known section of the federal criminal code is a prison term of up to 15 years. The government decides to prosecute."

Greenhouse continues, "Faced with coming up with the 'history and tradition' demanded by Supreme Court precedent, the prosecutors scramble to respond to the young man's invocation of the Second Amendment in his motion to dismiss the case…. The creative government lawyers come up with 'habitual drunkard' laws from the 18th and 19th Centuries. These common state laws took obviously inebriated people off the streets and sent them to workhouses or jails, where they had no access to firearms. Is this the best analogue that the federal government, with all the resources at its command, can unearth to validate a modern gun law? What I have just described is not a hypothetical case, but the actual facts of United States v. Hemani, decided by the Supreme Court on June 18."

The High Court's conservative justices, Greenhouse argues, are taking "originalism" to an extreme.

"Although I've had a bit of fun with the Hemani case," Greenhouse writes, "a serious question remains: Did it teach the Court anything? Or will the justices continue stumbling through the history books under the fiction that at the end of the road lies objectivity? The answer matters greatly."