'Foolish and exhausting': Analyst claims Supreme Court reduced the law to a 'petty game'

The conservative justices of the Supreme Court proved beyond a shadow of a doubt this term that their fealty to "originalism" is a facade for their political agenda, Jess Coleman wrote for The New Republic in a scathing analysis published on Tuesday.

"Make no mistake, originalism has always been a sham — and always applied selectively in the pursuit of reactionary ends," wrote Coleman. However, this year, the justices proved the ideology "in crisis" and "unworkable" even amongst themselves.

A key moment when this was on full display was when the court overturned nearly a century of precedent to give the president nearly-unlimited power to fire independent agency officials, and went out of its way to disregard 18th-century writings that contradict this.

"Take a line from Federalist, Number 77, where Alexander Hamilton noted the Senate’s consent would be required 'to displace as well as to appoint an officer,' so as to prevent the president from becoming 'the sole disposer of offices,'" wrote Coleman. And this was "the most forceful and influential advocate for a strong executive among the founding generation." Despite this, the court's response was to "call this a 'passing comment,' bizarrely suggesting the word 'displace' doesn’t necessarily mean 'remove,' and instead demanding that we consult the 'logic of The Federalist as a whole.'"

Then there was the landmark birthright citizenship case, where the conservatives split over the issue to deal Trump a loss — and in the process, attacked each other.

"Justice Brett Kavanaugh concurred in the judgment, but wrote separately to state that the constitutional definition of birthright citizenship is not set in stone, and opened the door for Congress to create 'exceptions' to birthright citizenship 'recognized based on new developments after 1868'" — a logical leap, Coleman noted, he would never allow for things like new firearms.

Meanwhile, Justice Samuel Alito "takes things even further, developing a citizenship test so strict that virtually all children born to foreign parents would fail," except for those who have “done everything within their power … to become American.” At this, Chief Justice John Roberts "scolds Alito for creating this 'ad hoc exception,' simply because he cannot 'stomach' the result of his supposedly historical exercise."

All of this proves just what a "mess" the exercise of originalism really is, Coleman concluded.

"What was once sold as a mission to develop clear, consistent, stable jurisprudence has instead rendered constitutional law in this country a foolish and exhausting exercise, completely divorced from logic, philosophy, or common sense; a petty game of jurisprudential grab bag to determine who has the best quote from an eighteenth-century slave owner," she wrote.