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SCOTUS’ originalism is a force for evil

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

SCOTUS’ Originalism is a force for evil not good. That was a statement made by a Havard Law Professor in 1990s. It rings true in June, 2022. In two crushing rulings, one on right to own guns and another on right to abortion, SCOTUS’ has bared its fury and claws over decades’, to strike back as a conservative majority on society’s values. America is roiling and boiling hot, mad and crazy. And the two verdicts/gifts handed down  amidst the birthday celebrations of the most conservative and longest serving Associate Justice Clarence Thomas, a black,  on The Nine.

The Supreme Court on  22nd June, 2022, struck down a New York State that  placed strict restrictions on carrying concealed firearms in public for self defense, finding its requirement that applicants seeking a concealed carry license demonstrate a special need for self-defense is unconstitutional.

In a 6-3 ruling, the Supreme Court reversed a lower court decision upholding New York’s 108-year-old law limiting who can obtain a license to carry a concealed handgun in public. Proponents of the measure warned that a ruling from the high court invalidating it could threaten gun restrictions in several states and lead to more firearms on city streets.  America waits for gunshots in public places including kindergartens!

Following it, in a historic and far raching decision, the U.S. Supreme Court on 23rd June,2022, officially reversed Roe v. Wade on Friday, declaring that the constitutional right to abortion upheld for nearly half a century, no longer exists.

Writing for the court majority, Justice Samuel Alito said that the 1973 Roe ruling and repeated subsequent high court decisions reaffirming Roe “must be overruled” because they were “egregiously wrong,” the arguments “exceptionally weak” and so “damaging” that they amounted to “an abuse of judicial authority.”

The decision, most of which was leaked in early May, 2022 means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. For all practical purposes, abortion will not be available in large swathes  of the country. The decision may well mean too that the court itself, as well as the abortion question, will become a focal point in the upcoming November  elections and in the fall and thereafter.

The Gang of Six – Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavannaugh and Amy Coney Barrett, as the majority in both cases,  is now called, have consumed the minority in Stephen Breyer, Sonia Sotomayor and Elena Kagan, in one fell swoop. The conservatives have choked the liberals of free breathing . What next? The target is gay rights and marriages. While Alito is subdued, Clarence Thomas is explicit. Why not strike down inter-racial marriage too ask the critics,  in rage, taunting Thomas’ marriage to the controversial white conservative Ms. Virginia Thomas.

A raging America is asking if SCOTUS’ can go back fifty years to trample Roe v. Wade and hundred years on NY State law guns, who can say they may not kill Brown v. Board of 1954 origins, ending de segregation and restore Plessey v. Ferguson of 18th May,1896 vintage. Nothing prevents The Nine to go as far back as they choose with a conservative Gang of Six well entrenched at the helm.

Forget the politics. It is stupid anyway. Supreme Court of any nation is a political institution. SCOTUS’ more so. The process of appointment itself is imbued in politics. It is worn on the sleeves of the appointees. Yet, they bluff their way through the Senate exercise. They lie through their teeth. They camouflage their philosophies by saying what is politically correct.

For instance, on Roe v. Wade the three new appointees or each of the Gang, all appointees, after 1973, talked effusively and gloriously of stare decisis  a.k.a. judicial consistency for certainty and magnificence of precedents. Yet, each one of the Gang of SIx has exposed their hypocrisy. That is because the Republicans who appointed them were playing the long game and let them reveal their true colours, when the opportune moment arose.

Originalism is a type of judicial interpretation of a constitution (especially the US Constitution) that aims to follow how it would have been understood or was intended to be understood at the time it was written. Justice Antonin Scalia was a noisy protagonist but hemmed in by liberals could only vent his spleen in dissent. Now, his ghost must be having a whale of time.

Don’t talk about ‘Justice System’. It is ‘Just a System’ as a wag beautifully put it. Justices adorn the bench with their philosophies as baggage or their baggage as philosophy. They wait to execute it. They don’t care if they were upsetting a fifty year old or hundred year old apple cart. They oblige their masters when ‘it matters’.

I am absolutely delighted that the land of the free is suffering from this Virus with no Vaccination. Thankfully,we are insulated from such crises. And immune to such SCOTUS’ land mines . As they sit as The Nine, they can ‘reverse and overturn as they please’. Unlike ours. It goes Pan America. But with a chaotic caveat that it is up to the 50 States to deal  and decide ‘as they choose,please and legislate’. As America is truly ‘Federal and an imperfect Union’.

A perfect recipe for all round disaster on the legal, constitutional, political and social plane. To add to Pandemic variants, inflation, sky high gas prices, Ukraine-Russia tangle, multiple gun shootings, a polarised society amidst the Congress’ show on ‘ Stop the Steal’ Oscar winner directed by Donald Trump. US of A looks cool and great from afar. I love it as a continuing catastrophic spectacle.

(Narasimhan Vijayaraghavan- Author of Constitution – it’s Making/Working, OakBridge, 2020/2021- practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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