Know Your SCOTUS: Justices Alito and Gorsuch Are The Same White Male Bobblehead

They've got your uterus. Now, they're coming for your free speech.

Supreme Court justices Samuel Alito and Neil Gorsuch

As I sit here in my living room during the worst drought in seventy years, the fan on full blast, a bottle of acqua frizzante beside me, I am reminded that Italy has survived plague, famine, invasion, war, and a pantheon of cruel and capricious gods: chthonic, pagan, Roman, Christian.

That’s a lot of regime change.

But the Italians are a heartier lot than Americans. They’ve earned their wise-eyed fatalism. I’m not convinced our own regime change won’t kill us.

A years-long drive by Republicans to rule by judicial fiat has finally come to pass. In addition to overturning a woman’s right to reproductive healthcare, ensuring that tax-free religious schools get tuition assistance, eroding the separation of church and state by allowing football coaches to openly pray at the 50-yardline, and a soon-to-be-realized wet dream of dismantling journalists’ First Amendment right to free speech, the six conservative Supreme Court justices have just today limited the Environmental Protection Agency’s authority to limit carbon emissions.

It is not an exaggeration to say they have signed our death warrants.

At this point, it hardly matters whether we have a president. His executive-branch muscle has been sapped of all strength. The Republicans know their agenda runs counter to the will of most American voters. They no longer pretend to care. Their refusal to work with the Commission on Presidential Debates, a bipartisan foundation established in 1987, means no Republican/Democratic presidential debates will be held in 2024.

That was the first shot across the bow.

Since then, they’ve laid the groundwork for other election skulduggery: scaring off poll workers and then filling those positions with their own people, making it harder to vote, purging voter roles, especially in Black neighborhoods, and screaming “voter fraud” at every turn. Voter fraud, as it turns out, is only real when Republicans lose to Democrats. This is all a part of their strategy.

But they’re making other inroads as well. The more extreme, fringe members of their own party are famous. We all know who Josh Hawley, Marjorie Taylor Green, and Lauren Boebert are. Quick, name one equally famous Democratic member of the House of Representatives that isn’t Nancy Pelosi.

Exactly.

Name recognition means a lot when the electorate isn’t paying close attention. Many voters who walk into the booth feel overwhelmed by the number of choices. Some will go with the first person whose name sounds vaguely familiar. That’s where we’re at now. If we’ve learned anything, it’s that fame quite literally Trumps reason.

Now that the executive branch has been rendered obsolete, and the two obstructionist “Democrats”, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have lame-ducked the president, where do we go from here? Senator Manchin has voted with the majority of Senate Republicans on 1,172 different votes or 54% of the votes he has taken as a senator. Since 2011, no Democrat currently serving in the Senate has split with the party more often, not even Sinema, who runs a close second. A cursory glance at her Twitter feed shows how detested she is by Democratic voters in Arizona, who are rubbing their hands together in anticipatory glee, itching to primary her in 2024. She’ll lose, but then what?

Supreme Court justice Neil Gorsuch and the missus at his 2017 nomination. Photo by BRENDAN SMIALOWSKI/AFP/GETTY IMAGES

If everything we’ve worked so hard for can be ripped away by a poisonously conservative Supreme Court, I can’t help but wonder how much real choice we have left. For the foreseeable future, and possibly many years after that, we are stuck with justices Thomas, Barrett, and Kavanaugh. So, what’s the expiry date on the other two arch-conservatives, Justices Neil Gorsuch and Samuel Alito?

For all intents and purposes, they are the same person. Both are white men who come from middle-class backgrounds. Both have two kids. Both were exceptional students. Gorsuch went to Harvard; Alito went to Yale. There are very few philosophical differences between these two, despite the age difference (Gorsuch is 54; Alito is 72), although it does happen. In one of life’s more delicious ironies, Gorsuch is sometimes considered the “softer” of the two rabid conservatives.

But most damning by far, Gorsuch and Alito (also Thomas and Barrett) are diehard originalists, and that’s a problem. So, I’d like to explain what originalism is, and why it’s an irrelevant intellectual exercise that has no place in modern American democracy.

Originalism is the idea that we should interpret the Constitution according to its original meaning. Originalists like the five ultra-orthodox justices on the Supreme Court believe the Constitution is an instruction booklet for legal officials. It must be applied, not interpreted (although this past week in abject hypocrisy has proven what a load of horse manure that is.)

Supreme Court justice Samuel Alito.

Let’s take the Second Amendment, for instance, which grants “the right of the people to keep and bear Arms, [which] shall not be infringed.” That seems pretty straightforward, right? You can buy a gun. But when the framers of the Constitution were alive, the word “guns” meant muskets and flintlock pistols. The typical Revolutionary-era musket had a one-round magazine and could fire, in the hands of a master dragoon, maybe three rounds per minute. Loading and reloading the gun meant you had to add gunpowder and use a ramrod to shove in the bullet. Then you had to reattach the ramrod before firing.

Super convenient, right? All that, and you were still likely to miss your target.

Fast forward to 2022. Nowadays, most machine guns are belt-fed weapons that fire 500 to 1,000 rounds per minute. In fact, machine guns will continuously fire as long as the trigger is held back or until the supply of ammunition is exhausted. No wonder the children killed in the recent Uvalde massacre were too chewed up to be identified visually. Most were identified by DNA.

The question you have to ask yourself is this: how do you apply an originalist interpretation to the Second Amendment when the technology itself is so radically different as to be unrecognizable to the framers of the Constitution? How do you apply 1787 rules (the year the U.S. Constitution was written) to the 21st century?

When the Constitution was conceived, women weren’t allowed to vote, own property, or open a business. They aren’t mentioned at all. Neither are Blacks or Jews. So you can see why crusty old conservatives like our cabal of Supreme Court justices find much to be delighted with in originalism. No women, Blacks, or Jews are protected by the Constitution, which makes them the intellectual property of the Court.

Welcome to the overthrow of Roe v. Wade.

To see old white men pontificating on the Bible as “sacred text” is just as disheartening as seeing old white men, one Uncle Tom and one crazy-religious Aunt Lydia discussing the Constitution as sacred text. How on earth do we repurpose a couple of dusty old books and/or documents to explain the way we live our lives in 2022? Short answer: we can’t. It seems the faster the world changes, the more tenaciously these hidebound originalists cling to their simple truths. Never mind that we’re the ones dying in the process.

We need a a living, evolving approach to constitutional interpretation, not literalists. Expanding the court (even if that were an option, which it isn’t because Senators Manchin and Sinema opposed it) might solve one problem, but it will surely create others.

But if we don’t—or we can’t—what do you think is going to happen to our country?

What other choices do we realistically have?

Now more than ever it is important that you read and understand what is happening in the United States of America. If you have thoughts, I want to hear them. Leave your comments below.

Copyright © 2022 Stacey Eskelin