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OA49: Why Originalists Don't Belong on the Supreme Court (Patreon)

Published:
2017-03-07 05:14:19
Imported:
2022-10

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In today's episode, we take a long look at the judicial philosophy of "originalism" made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement.

First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response....

Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew's argument is that originalists do not belong on the Supreme Court.  Period.

Finally, we end with the answer to Thomas Takes the Bar Exam question #13 about hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a panel guest on The Thinking Atheist episode "Donald Trump's America," which you can listen to by clicking right here.

Show Notes & Links

  1. Here are Andrew's two blog posts -- one about Legal Zoom and one about downloading contracts off the internet.  His law firm site is here.
  2. This Huffington Post piece quotes Scalia's 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture.
  3. Here's a link to the full text of the Federalist Papers.
  4. Marbury v. Madison, 5 U.S. 137 (1803).
  5. United States v. Carolene Products, 304 U.S. 144 (1938).
  6. Scalia's dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law.
  7. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both "cruel" and "unusual in the Constitutional sense."

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Comments

Anonymous

Just speaking to the legal zoom crap, I agree. I would like to see you address the legal services provided as benefits (in my experience it is the same). In every case (there haven't been many, but more than I'd like) that I've needed legal services, going to talk to an actual lawyer in the flesh has resolved my problem/dispute for a mere pittance of what these online legal services would cost (save one, which is a story more than a case).

Anonymous

Great show. Although the main thing I took away from it was how terrifyingly hard it will be to weed originalism out of the Supreme Court now that it has a foothold. The root of the problem seems to be the bill of rights. Without it, the SCOTUS would be far less political. I remember back in (Australian) law school, there seemed to be a consensus among the professors that bills of rights are undesirable. At the time I disagreed, but I have subsequently come around to their way of thinking. I see in the USA civil asset forfeiture, stop and frisk, and immigration traffic stops (cf 4th amendment); rampant wire taps and surveillance (cf 4th and 5th amendments); and capital punishment and 3 strikes rules (cf 8th amendment), and I reflect on the fact that we have none of those things in Australia (well, maybe some wire taps – who’s to say?) despite our lack of a bill of rights. It makes me struggle to see the value. On the other hand, it does seem to heavily politicise the court and the appointment process in a way that seems to have greatly undermined public trust in the judiciary. My (Australian, non-legal) mother is able to name the affiliation of SCOTUS judges, but not any of the judges on the Australian High Court. That seems to me to suggest a difference worthy of consideration. What are your views on the desirability of a bill of rights?