Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices. 

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,


That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith. 

They presume that the words of the Constitution possess essentially one “original” meaning.  And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of  originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement. 

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks. 

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.


  1. The lifespan of a modern democracy is approximately 200 years. What we are seeing at this point in time is a decline in confidence of our major institutions, and the corruption of the SCOTUS is a pretty good indicator of the end times of our democracy, at least in its current form. Maybe that is a good thing; time will tell.
    Regarding the specific issue at hand, what are the mechanisms currently available to rectify the corruption of the SCOTUS? Can a Justice be impeached? Can they be removed from office in any other way?
    If there are no tools available, maybe a new tool needs to be invented such as term limits and a meaningful code of ethics with real consequences for violations that are somehow immune from political interference.
    The question is, as always, what are we going to do about it?

  2. Seven of the nine justices on the court are Catholics. How would the people feel if those nine were Hindus? Or maybe Muslim? What about atheist? And does anyone really think this just happened by chance?

  3. This is why I find the “independent legislatures” case so fascinating. If there was one thing that our founders obsessed about it would be the “checks and balances” structure of government. There is no question that should this court side in favor for a unchecked state legislature, it will be a complete deviation from the “original intent” of our founding documents. You know they will, and they will find a way to make their decision fit into some sort of legal box with obscure, and probably misinterpreted, historical references…

  4. Copied from Bold Progressives; “Politico reports that Court Justice Brett Kavanaugh attended a Christmas party with Trump’s inner-circle White Supremacists Stephen Miller and Sebastian Gorka, disgraced Florida Congressman Matt Gaetz, newsmen Sean Spicer and Greta van Susteran and Republican operative and Blackwater founder Eric Prince.”

    “At what point does an ideological lens morph into dishonesty and corruption?” We have watched the morphing of the Republican party into Trump’s White Nationalist MAGA Republican party and continue watching the ongoing coup to overturn the 2020 presidential election. The wheels of justice turn slowly and seem not to be turning at all regarding Trump and his inner-circle as they remain above all laws using blatant sedition and treason on January 6th as the insurrection was telecast around the world. Will we ever know what transpired at that “Christmas” party with no Christians in attendance?

  5. We all know that witches float, so if you are not a witch, you will drown. I expect to see that sentence in a future Alito decision, since that was the obvious logic of his Dobbs decision. Guilty until proven innocent by your own death.

    The American Catholic Church could stand a few good years at a Jesuit School. Not all Catholics are as simple minded as most on the court. I give you Justice Sotomayor as a good example of that.

  6. As a non practicing Catholic, I am appalled at drunken Catholic frat boy, Kavanaugh, is a judge, but then look who appointed him.
    Also miss prim and proper Catholic wife, Comey Barrett, kowtows to men since that is how she was raised, who has adopted several children, some who are POC, how dare she be a judge creating precedence as to how others need to live (by her rules), this hypocritical Catholicism is why I became a non practioner.
    I sure don’t know what these Catholic justices learned about God, Jesus and faith. Their actions and decisions are surely not based on the teachings I gleaned in 12 years of Catholic school.

  7. The Bush family legacy of SCOTUS appointments will last forever as the low point in the selection process. Bush the elder gave us Thomas. Of course, the other Republican fool, Reagan/Regan, appointed the late Scalia, so… Bush the younger gave us the demented Alito and the spineless Roberts. These are Federalist wankers posing as intellectuals. They are not. They are ideologues. The three Trump appointments are even more egregiously biased than the others.

    So, yes, James. This rot from the Republicans is destroying our democracy one case at a time. Add to this mess the corrupt Mitch McConnell’s aid and abetment to preventing Obama’s choice for the court seals that envelope.

    Why on Earth does any true patriot vote for any Republican for any office? I guess the answer to that question lies with the results from NW Georgia and Colorado’s third Congressional district. The people there are voting for traitors who aren’t very smart. Oh. I forgot about those re-elected seditionists from the Carolinas too.

    Connecting religious zealotry to the the Supreme Court is, of course, a fool’s outcome. No wonder Republicans embrace it so readily.

  8. Unless your standing in a Catholic Church or School, and randomly picked 9 people, the odds of 7 of them being Catholic is pretty low. The odds of 7 of them being practicing Catholics has to be astronomically low.

    I’m going out on a limb here, most people I’ve met and gotten to know who are religiously devout, seem to have a warped world view and not always based in science or facts. I worked with one guy that wouldn’t go out with our lunch group if one of our female co-workers was going. He had some weird hang ups about attending meetings with women present. I think I heard those same rules from our former VP and Indiana Governor, Mike Pence, so this isn’t something that was just made up.

    As I have said before, an “originalist” is someone who feels like they can make up “original” alternate facts to suit the worldview they are trying to cram down our throats.

  9. The American Catholic Church is an authoritarian institution working to undermine American democracy and modernity in general while hiding behind “religious freedom,” tax exemption, and the ignorance of its customers. It is time for liberal Christians and the “nones” to work together to reject those who bring backward dogma to government.

  10. As a former Catholic and former employee of the University of Notre Dame (where Barrett was a professor), I have serious questions about all of their motives. Let me just say again for those in the back…

    Follow The Money and TAX THE CHURCHES, god damn it! Everything has a grift now.

  11. All faith is originalism and vice versa. Both are based on the premise that people in the past could see the future and offer plans for it. Really?

    We can’t see tomorrow that’s only a little different than today but they could see centuries ahead?

    I guess we are getting more and more stupid.

  12. i see theology in the law book, and how one can interp it,and defend how they view it. if the founding fathers seek to change midevil law,and set a path to individual freedoms free from the kings harm, i believe that was the intent. how i see it. today everyone has a opinion,alot of it now being used like a machine gun direted in your face. during WW2 after the nazi march and plunder of euro,most Americans only then took heed and back the invaision. the people of America rose to defend what was being denied in euro,again. today its all after thought,even by many who lived thru that era.being right has taken presidence over the correct need to defend against another nazi
    like take over. how one interpets the words, or now,what yelled into ones ear,without any proof of being ligit giving no thought about the consequences,for anyone else. its solidarity in one. the justices today dont adhear to past rulings on civil rights,they speak their needs,and are setting them for everyone to adhear to. religion be damn,if its biblical word speak of tollerance,(theology again)on whose bench? not the supreme court today..
    the justices see it as fair ground for their so called respected opinion. (elected by a few)
    how much more political can ya get in recent decisions. thomas is one boogy man,roberts pushed in by bush as chief justice to suit his need to distroy iraq. this alone and the timing should have given greater scrutiny
    when in congressional recess bush,(king geo second) made him chief justice. bush knew him and trusted him. again,a political move. America was deep into 911, and the lies from the so called intelligent community about WMDs was a hoax. no one here was held accountable,,imagine that. the ICC should have more power, to subdue what we here can not. the courts have fallen dead on protections and rights of Americans. seems the greed side is winning,again.

  13. The Constitution originally called for each slave to be counted as 3/5 of a person. Do we go back to slavery? Just askin’.

  14. You go Aging Girl!! Tax the churches! Tax the churches! Tax the churches! and don’t forget the mosques, temples etc.

  15. So some of the justices may tell their clerks that here is the outcome I want in pending cases, so research with that in mind. Thus the vote of such justices is not the result of reasoned adherence to stare decisis (see Dobbs} or the current environment such decisions impact, but is rather based upon an already decided yea or nay with covers such as “originalism” and other dubious standards in justification for such votes.

    If we truly believe that church (Catholic, Baptist or whatever) and state are to be separated, then perhaps we should insist that all justices be atheists, with the hopeful result that none of them would be subject to the Dred Scott/Plessey/Dobbs/originalist views of how they are to define the rights of citizens vs. state, including those that Jefferson noted were inalienable.

  16. Interesting blog today.

    I find it fascinating that things that I’ve been bringing to the four through comments and research we’re basically poo-pooed for the most part because of long-held prejudices. But, one or more of the clique or cliquish ideologues masquerading as pragmatists, brings up an epiphanic Revelation seen in word or in deed is a philosophical genius!

    Of course religion has been manipulated, but if you go back to the oldest copies of the Greek or Latin Septuagint, you will find that besides a few spelling misunderstandings, they are exactly the same today. There is no deviation of message.

    The churches, or religion in general, does not resemble the original state of worship.

    The original Christians were not involved in politics, the original Christians were not involved in military actions, the original Christians were not involved in government whatsoever. An example of this would be the apostle Paul who changed drastically when he became a disciple of Christ. And considering he was a Roman citizen and also a member of the Sanhedrin, this was an unusual step.

    If you don’t understand the The where’s, the why’s, the how’s, and the what’s, how can you make an argument against it? How could you point out inappropriate or inaccurate nuance no matter how trivial?

    Well, you can’t! So, you continue to flail, you continue to claim everything’s going to be all right because the millennials have their act together, lol! Are you aware of how many times in history that very thought process has permeated society? Well, I’ll leave it to you. Because, I really don’t know anything as most on this blog would attest to, lol! But if you go through the past 5 years or so, The sum of my commenting has not really deviated. But, I’ve noticed others that are all over the map! History points the way to how this all ends, and, instead of taking the hint, instead of researching lessons that should have been learned from, everyone thinks technology will save the day. The only thing technology will do, is Grease the skids out the door much quicker.

    You know what the Millennials are hoping for? A huge stock market crash, because that will drive property values straight down the toilet! Then they can all go and buy a house, or a condo, or some sort of specialty vehicle, or a motorcycle, or a boat, and do it all on the cheap. Somehow!

    Aaaaah, the best laid plans of mice and Men! Sounds kind of intellectually maleficent!

    I stand by what I’ve learned and what I’ve researched, and what I’ve actually written papers about over the past 30 years. So, I’ll leave it to you to do your research, just stay away from the Cliquish slant!

  17. Niches change, and if humanity doesn’t, we’ll go extinct. Right now, since we’ve stalled out evolution with medicine and the internet, more and more humans are successful psychopaths, and they self-select for more and greedier like them, half genetic, and half nurture, but both tending to Trumpies, Orbans, Dutertes, Putins, LePens, De Santis.
    Since this undeveloped blog, with no likes, no edits, no replies is published very early, I just use it to practice. Sheila, being set in her ways, doesn’t want to change the crippled blog, so I am often the last poster into the void. I get more action from the NYTimes comment section, and here we are discussing intellectual stagnation of Catholics.
    Catholicism, and/or religious indoctrination, is a root and simple cause of so much conflict in the wide world today, but the religious ain’t interested in uncomfortable self-searching, hence the heavy skew here towards monotony.
    You need an indicator of progress, look at a broad correlation between “more Nones vs religious types” and civil and international conflict. Hindus v Muslims, Jews v Muslims, and very peculiarly, an officially atheistic Soviet Union being now cynically supporting Catholicism for social control. JUST LIKE SCOTUS.
    Religion is for social control.

  18. Ormond,

    It won’t last in the Soviet Union, Russian Orthodox rules the roost there. They don’t get along with the Catholics very well. That being said, most of their dogma is quite similar.

    White nationalists love the Russian Orthodox Church, especially outside of Russia! It’s known as ROCOR and it’s most vocal adherent is Vladimir Putin. Their cathedrals are filled with weapons and clandestine equipment. It really isn’t a secret. The Russians have rankled the French quite a bit with their use of the Russian Orthodox Church Outside Russia.

    Orthodox Dens of iniquity, are no different than those of the Catholic Church. With the Roman Catholic Church feigning celibacy for their hierarchical construct, showing their hypocrisy loudly and proudly.

    Hence all the murdered babies found in many different Catholic facilities of old and not so old. The perverted rape and torture of Native American children, and Aboriginal children in Australia, and children of South America, and children of Ireland, and children of numerous African nations.

    Why haven’t they been called to account? Well, the main reason, the church is protected by the political realm. Doesn’t matter the spot or stripe of the political realm, the religious realm doesn’t capitulate in their perversion, so the political realm picks up that slack. Money always talks, and hence their protection.

  19. Bottom line the Roman Church does NOT believe in separation of church and state. It believes the state should be subordinate to the state. I’m going through Roman catechism as frankly it will make life easier as my wife is Catholic as is the predominate church in the Philippines. Bottom line there are things I will not agree with the Roman church. I started as a First Brethren (think German Baptist) then became an Episcopalian AKA English Catholic. There really is not that much difference with the Anglican and Roman Churches. Bottom line, God knows what I believe and that my friends is the only thing that matters.

  20. Just now seeing this.

    It astounds me the level of anti-Catholic rhetoric (dare I say bigotry?) on here from the some of the commentators. I guess people feel that sort of intolerance is okay when Catholics are the targets as opposed to people of other religions.

    I would like those who attack originalism as a judicial philosophy to instead put forth a coherent judicial philosophy that would provide structure and limits to how judges rule. The next time I hear that alternative philosophy espoused will be the first time.

  21. Pual,

    It’s truth of history, it’s not a delusional opinion. They and others need to be held accountable for what they’ve done throughout history! Individuals that decide to stay in an organization that has perpetrated the horrors mentioned in historical documents, are just as culpable since they conspire with the perpetrators organization.

    KKK, Nazis, or nationalistic authoritarians, have they done worse than what the church has historically done? Answer that question, and then reflect on your question!

  22. Medievaliism? Why not? After all, it is only centuries since those “good old times.”
    Federalist Society.
    Not long ago there was a meme going around to the effect that “A wall is of no use. When
    the enemy is within.”

  23. Originalism just another name for self-insertion in legal writing. The author projects him or herself into the fictional role of Founder or Framer.

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