‘With the different court, mostly populated by people who have fashioned themselves as originalists, we need to speak to them in the language that they have…’
(Michael Barnes, Liberty Headlines) While Antonin Scalia was alive, liberals and progressive loathed the Reagan-appointed Supreme Court justice’s legal opinions—mainly due to his “textualist” adherence to the U.S. Constitution.
But now that he’s gone, passing away unexpectedly in 2016, liberals have learned to love him—at least, in so far as they can attempt to co-opt his judicial philosophy.
The departure of longtime swing-voter Justice Anthony Kennedy last year arguably swung the court to a more firmly rooted 5–4 majority of conservatives to liberals.
Although Chief Justice John Roberts seems poised to take Kennedy’s spot as the tiebreaker in certain cases, liberal advocates are also mulling how best to win over the four other conservative justices in order to shift the balance in their favor.
Key to the strategy is reverse-engineering Scalia’s lifelong dedication to judicial textualism for their own purposes. Textualism means interpreting a law, or the Constitution, based on its ordinary meaning when the law was passed.
For decades, progressives have instead hung their hats on judicial activism, which often involves creating legal justifications to achieve liberal policy goals that clearly depart from the plain language of a law.
With respect to Roe v. Wade, Scalia famously said the decision “does not make any sense.”
“Regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice,” he said.
But instead, the Supreme Court actively ruled that the Constitution makes abortion legal everywhere in the country.
Now in opposition to President Donald Trump, progressive groups like the Constitutional Accountability Center are seeking to make textualist arguments against conservative issues on the assumption that a judicial activist approach would fall on deaf ears. Their belief is that the Constitution somehow supports progressive causes.
“Our founding belief was that if progressives spent less time fighting about the method of interpreting the Constitution with conservatives, we could spend more time discussing what the Constitution actually means,” CAC Chief Counsel Brianne Gorod told the Huffington Post. “And that’s a fight that progressives can win.”
CAC lawyers recently tried, and failed, to employ the approach and block Trump’s appointment of acting Attorney General Matthew Whitaker. They have also made textual arguments through amicus briefs in dozens of cases, including one defending the legitimacy of the Obama administration’s Consumer Financial Protection Bureau.
But the CAC’s biggest textualist gambit is aimed directly at taking down President Trump.
The center’s lawyers are representing nearly 200 congressional Democrats in a lawsuit asserting that the Trump has violated the Constitution’s emoluments clause, which prohibits a sitting president from directly profiting from the use of his office.
The clause specifically addresses business dealings with foreign government, something they have accused Trump of doing after declining to fully divest himself of his family business despite its frequent business dealings with foreign entities. At the very least, the Democrats hope it will force Trump to disclose his tax returns.
An emoluments case has never succeeded against a U.S. president, or even been allowed to proceed after an initial filing, until last year, when a Clinton-appointed judge cleared the way for the current suit.
The suit dubiously asserts that Trump is violating the clause because he’s profiting from foreign travelers who stay at his many hotels, and in particular his hotel in Washington, D.C.
There’s a chance the case will find its way to the closely divided Supreme Court.
“With the different court, mostly populated by people who have fashioned themselves as originalists, you know, we need to speak to them in the language that they have at least themselves,” Gorod said.