Addendae
Clarence Thomas’s Cherry-Picked Originalism on Affirmative Action
https://newrepublic.com/article/174469/clarence-thomas-cherry-picked-originalism-affirmative-action
Originalist justices now hold a majority of seats on the Supreme Court.
As originalists, these justices believe that when the Constitution was written, the informed public understood the meaning of its vague clauses; & they believe that that meaning, as a kind of fundamentalist Scripture, must be binding for all time unless changed through the extremely arduous Article V amendment process.
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Originalism began in the 1970s as a conservative response to constitutional reforms of the Warren court, to restrain liberal judicial activism. Today originalism supports turbocharged right-wing judicial activism.
On major legal issues - religious liberty, gun control, presidential power, sovereign immunit - SCOTUS' conservative originalist justices are transforming constitutional law through opinions that claim to bring the Constitution back to what it meant when adopted.
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All these opinions reach their result through flawed historical investigations.
They cherry-pick evidence, give their subject incomplete consideration, are out of touch with the findings of recent historical scholarship, & reach conclusions that coincide with the writers’ preestablished political & social views.
Clarence Thomas’ concurring opinion in the Harvard and UNC affirmative action case well illustrate the shortcomings of originalist jurisprudence.
