Mark Tushnet, a prominent legal scholar, has shared his insights into the workings of the U.S. Supreme Court, shedding light on its historical context and current dynamics. He reflects on the era from 1953 to 1969, a period marked by substantial civil rights reforms, and scrutinizes the influence of judicial writing styles, particularly those similar to Justice Scalia's. Tushnet also evaluates the tendencies of rightwing justices appointed by former President Trump and the potential impact on legislative decisions. His observations include a critique of the focus on judges as potential nominees and an analysis of judicial originalism.
Tushnet describes the Supreme Court during the 1950s and 60s as a pivotal force for civil rights advancements. This era showcased landmark decisions that reshaped American society. However, he contrasts this past with contemporary issues, highlighting the influence of writing styles on judicial opinions.
“Now, writing styles change over time. And having read an enormous number of opinions of the 1930s, I know there’s an improvement in readability since the 1930s.” – Tushnet
He critiques the trend of including "Scalia-like zingers" in opinions, emphasizing their superficial appeal.
“But the idea that [opinions] become more readable, accessible and memorable by including Scalia-like zingers, short phrases that are quotable and memorable, seems to be just a mistake.” – Tushnet
Tushnet suggests that justices should emulate Justice Kagan's writing style for clarity and substance.
“If you’re going to do it, do it the way Justice Kagan does, rather than the way Justice Scalia did.” – Tushnet
On judicial appointments, Tushnet expresses concern over the current nomination process. He argues it has strayed by focusing primarily on candidates with judicial backgrounds and constitutional theory.
“because I had this longstanding sense that the [supreme court] nomination process has gotten off the rails, mostly by focusing exclusively on judges as potential nominees, and secondarily by focusing on constitutional theory.” – Tushnet
His ideal candidate would blend diverse experiences akin to Charles Evans Hughes, who held multiple influential roles beyond the judiciary.
Tushnet also distinguishes between academic and judicial originalism, noting that academic originalism withstands many criticisms often leveled against it. However, he sees judicial originalism as opportunistic, used selectively when convenient.
“So [justices are] selectively originalist, or, as my phrase is, opportunistically originalist. They use it when the sources that they’re presented with support conclusions they would want to reach anyway…” – Tushnet
He remarks on how originalism requires extensive work to fit certain decisions, exemplified by cases like TikTok.
“To get originalism into the TikTok decision, for example, you have to do an enormous amount of work. It’s not impossible, but it’s not an originalist opinion, fundamentally.” – Tushnet
Furthermore, Tushnet identifies Justice Samuel Alito as embodying Scalia's combative spirit. Alito's role in the Dobbs v Jackson ruling demonstrates this influence. Tushnet observes that Trump's appointments have emboldened rightwing justices to make bold legal moves.
Tushnet reflects on how these justices might handle legislative matters, suggesting they could impose "speed bumps" requiring congressional approval.
“Like many administrations before it, the Trump administration is taking aggressive legal positions, which may or may not be vindicated. If they’re not vindicated, they’re muttering about what they’ll do. That’s happened before.” – Tushnet
Moreover, he notes that some current justices lack prior judicial experience, similar to those who decided Brown v Board of Education. This diversity in background brings varied perspectives to the bench.
“I think her involvement in that group has exposed her to a much wider range of human experience than John Roberts’s background, for example.” – Tushnet
As discussions continue about potential nominees outside traditional judicial circles, Tushnet jokingly refers to unlikely candidates from media backgrounds. He imagines scenarios where unconventional figures like Fox News commentators might be considered for high office.