Osler's Razor

[Teaching Constitutional Law] was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity than in imposing a partisan agenda.

The premise no longer holds today....

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party. 

Take one of the most glaring recent examples, the court’s June 2022 decision striking down a century-old New York law requiring gun owners to obtain a permit to carry a gun in public.

New York State Rifle & Pistol Association, Inc. v. Bruen was decided 6 to 3, with all the Republican-appointed justices joining the majority opinion by Justice Clarence Thomas. It was the court’s most transformative gun-rights case since Heller, and like that earlier case, it featured the right-wing justices playing amateur historians, cherry-picking and distorting evidence from decades or centuries ago in order to justify their existing opinions — a practice real historians refer to derisively as law-office history.