Yeah, that’s why I really liked Jackson’s dissent. She did not do that.
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The whole abstraction thing seems be a problem with “originalism”, despite it’s pretensions to basing their rulings in “original” meaning and history of whenever a law was passed. It seems based on an ideology and works backwards from there, damn the real world consequences for actual humans.
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The Bloomberg article did have a good critique of originalism, until it followed it up with “but it’s not that bad.”:
The opinion itself is a classic example of the madness of originalism — the notion that the Constitution and US laws should be interpreted according to what they meant when enacted — not in light of contemporary reality. Barrett framed the issue in the case as whether the Judiciary Act of 1789 — one of the first laws passed by Congress after the ratification of the Constitution — would have allowed federal judges to issue universal injunctions at the time in light of English practice. She then asked if English courts of equity had any power analogous to the issuance of universal injunctions — and answered in the negative.
The first problem with this analysis is that the role of the judiciary and the realities of legal decision-making today are radically different from the circumstances of 1789. That’s true of the US — and even more true if the US is to be compared to 18th-century Britain.
The most crucial difference is that since 1803 and the famous Marbury v. Madison decision, US courts have had the power to declare laws and executive actions unconstitutional, a power the English courts didn’t exercise and that wasn’t explicitly granted by the Constitution. When a court rules a law unconstitutional, there is no good reason for the executive branch to be able to implement it anywhere — a point emphasized by the two dissents in the case, one by Justice Sonia Sotomayor and the other by Justice Ketanji Brown Jackson.
Trump’s birthright citizenship executive order is a perfect example. It’s obviously unconstitutional — as the dissenters stated and the majority didn’t deny. So why should the executive branch be able to enforce it anywhere once a court has ruled that it can’t be enforced within that court’s jurisdiction? Originalism misses the bus here because it ignores the evolution of the judicial power to allow the negation of unconstitutional laws and policies.
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I mean, I’m sure HE’LL be fine, so none of us should worry! /s
But it’s this kind of thing really worries me. People unable to see past their belief that our systems are strong enough to withstand this kind of sustained assault by bad actors - they could be, but they could also not be. Just a cursory understanding of the post-Civil War landscape will show that - if reconstruction saw real progress on integrating Black Americans into the body politic, the backlash was violent and severe, and it took decades to bend that arc back toward justice.
Blind faith in institutions just isn’t helpful right now. And this is why we need historians, cultural scholars, social scientists, literary critics, artists, writers, etc… Of course, people in those fields can have problematic views and blindspots, too, but there tends to be at least an understanding that there is a horizon of possibilities in both the positive and negative direction. Being historically minded is especially important, because if there is an “iron-clad law of history” it’s that things change, and that change is not always in the direction of more freedom, more progress, etc. You can count on change, but you can’t count on what that change will be.
It’s a scary time. 
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IMHO, it can be summed up as “I will be fine, my family will be fine, so it’s certainly not that bad.” It’s just Neimöller all over again. The inability to learn from history is maddening! (He said to the historian, ducked and ran away…)
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Seriously, though, it absolutely is. I think it’s the way most of us understand history - as something to be viewed “objectively” and outside of ourselves, rather than as ourselves being products of that history, of the world we live in being the result of historical processes that shape the world we’re in now. History is often taught as something that happened to “others” who are not us, hence it has nothing really to do with us, other than for us to marvel at it, or shake our heads about… “those” people aren’t as enlightened as “us” and they made mistakes that we won’t make… this is often despite the mindset that learns from that history… How we… objectify events like the Holocaust is a prime example. We lean on ideas like the “sonderweg” (special path of Germany that made it seem impossible in other places, despite their being deep histories of antisemitism across Europe), and the singularity of the holocaust, that it’s a lesson learned that could never be repeated… It does not help that we’re told that we can never compare that to other historical events. The holocaust is so unique, we can’t compare it to the Armenian genocide, or Cambodia, or Rwanda, or Yugoslavia… But if we can’t compare and contrast such events against each other, and see where there is historical overlap and similarities or where they diverge, how can we possibly think through the various ways that genocide or ethnic cleansing can be possible in the future.
I think part of the problem is that many people learn their history, not from historians, or books, or lectures, etc, but from films, both fiction and non-fiction, which reify the very notion of objectification of the past that is a problem… If the holocaust is merely a form of entertainment (sad and depressing entertainment) that elides the complexities of such an event and how actually happened, if it’s down to individuals making choices, and not down to historically specific conditions that we can understand, name, and identify in other times/places, then how can we possibility see it as something that COULD happen again, to any number of groups hated for no reason other than their very existence.
/rant
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The ACLU, as well:
Within hours of the Supreme Court’s ruling, we filed a nationwide class-action lawsuit against President Trump’s executive order restricting birthright citizenship.
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I think we need an angrier Sisko…
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…one justice, Ketanji Brown Jackson, has been particularly adept at laying the groundwork for a future court where originalism will be more than just a cynical tool to achieve conservative ends. At the end of this term, Jackson showed why she’s a specialist in this area by brilliantly seeking to expand the scope of whose original intent is seen and considered by the Supreme Court to players who have long been invisible. Specifically, Jackson asked the court to reckon with the views and work of free Black people in antebellum and post-antebellum America when considering the meaning and power of the 14th Amendment. This move was an astonishing corrective to a term drowning in calculated partisan-oriented maneuvering over legitimate judging.
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If this is the new rule - let other nonprofits endorse as well.
But I really hope this gets overturned.
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You just know this will be selectively enforced. I am waiting for the first endorsement of a progressive candidate from the pulpit. Watch the fascists lose their minds.
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