Attorney Joseph D. Steinfield lives in Keene and Jaffrey. He can be reached at joe@joesteinfield.com.
Originalism, the doctrine of interpretation that says the Constitution means today what it meant when it was ratified, has a firm grip on the Supreme Court. Last June’s Dobbs decision, overruling Roe v. Wade, proves the point.
Justice Alito’s majority opinion repeatedly says that the word “abortion” isn’t in the Constitution and that a woman’s constitutional right to choose, established in Roe in 1973, and upheld in Planned Parenthood v Casey in 1993, is not “deeply rooted” in American history and therefore does not exist. Roe and Casey were, in his words, “egregiously wrong.”
According to constitutional scholar and law school dean Erwin Chemerinsky, originalism is “just the rhetoric conservative justices use to make it seem that they are not imposing their own values, when they are doing exactly that.” Those words appear in Worse than Nothing: The Dangerous Fallacy of Originalism, published in September.
The Dobbs dissent of Breyer, Kagan, and Sotomayor says much the same thing. “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
Another way to say this is that originalism is simply a way to convert cultural values into law.
We don’t need to wait for historians to explain how today’s Supreme Court came to be. The Federalist Society, founded in 1982, has taken the leading role in promoting its preferred candidates for federal judgeships. All six Republican-appointed justices on the Supreme Court are or were members of the Society: Alito, Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas.
There’s nothing wrong with lawyers joining bar associations or other lawyers’ organizations. And such groups have a right to promote their member’s interests, including the promotion of judicial candidates. Over its forty years, the Federalist Society has proved that it does this better than any other organization.
But a line should be drawn when the president’s nominee is confirmed and takes the oath to discharge his or her judicial duties “faithfully and impartially.”
Canon 2 of the Code of Conduct for United States Judges says that a judge should “avoid the appearance of impropriety in all activities.” Canon 4 allows a judge to engage in “extrajudicial activities” so long as they are consistent with his or her judicial obligations and do not “detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality.”
The Code applies to judges appointed to every federal court except one — the Supreme Court.
So it was that on November 11, 2022, Justices Alito, Barrett, Kavanaugh, and Gorsuch attended a black-tie dinner at Washington’s Union Station. They were there to celebrate the fortieth anniversary of the Federalist Society. When Justice Alito rose to speak, the celebrants (including Senate Minority Leader Mitch McConnell and Utah Senator Mike Lee) gave him a standing ovation.
“Boy, is your work needed today,” he told them.
Justice Amy Coney Barrett followed Alito to the podium., “It’s really nice to have a lot of noise not made by protesters outside of my house,” she said.
Leonard Leo, who has long been the Federalist Society’s point man, basked in the limelight. He vowed to continue “the principles and practices we hold dear … for the sake of our country and culture.”
Since when do Supreme Court Justices attend a partisan black-tie dinner and take a victory lap? No doubt Justice Alito takes great pride in his Dobbs opinion, overturning fifty years of constitutional protection of reproductive rights, but showing up at this event? A standing ovation? Giving a pep talk urging the Federalist Society to continue its work?
It doesn’t really matter, at least in this instance, that the judicial canons do not apply to the Supreme Court. I once had a case where the defense was that “there’s no rule against it.” At closing argument, I told the jury, “Some things you just know.”
In the case of Justice Alito and his three colleagues, apparently not.