Originalist Judges and Constitutional Distortion

Greg is absolutely right that originalists who supported Trump made an awful bargain in constitutional terms. As I wrote in the fall of 2019 in The Bulwark:

“’But Gorsuch!’ That’s the worst of it. The president can trample the Constitution but at least there will be conservative justices! This is a devil’s bargain: It risks politicizing the judiciary (admittedly in the name of restoring judges to their proper role), while allowing gross constitutional malfeasance from the chief executive. Under Article VI, all public officials swear an oath to uphold the Constitution because the promise of constitutional government depends on all the branches. To secure a few seats on the Supreme Court while the other branches neglect the Constitution is a profound distortion of constitutional government that’s likely to have lasting consequences.”

But Greg’s analysis leaves out the erosion of constitutionalism in the Congress—particularly with regard to the confirmation process—and, possibly, the Supreme Court itself. Let’s not forget that with no care about constitutional norms, Republicans refused to even consider President Obama’s appointment of Judge Garland because it was an election year. The same Republicans rushed through, within weeks of an election, Judge Barrett (who is now Justice Barrett). This is rank constitutional hypocrisy. And these same Republicans act as if any effort to rebalance this constitutional injustice is a violation of sacred constitutional norms. They were all too willing, for judges, to neglect their own oath of office and look the other way while Trump trampled the Constitution. Even now, after President Trump urged his supports to violently march on Congress, most Republicans are unwilling to condemn his patently unconstitutional actions regarding their own branch!

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