The Sin of Originalism: Rachel Shelden’s Forgotten History of the Political Supreme Court

“Originalism is not the original way of thinking about the Constitution. The past can tell you some things, but it can’t answer our modern problems.” — Rachel Shelden

INTRO

Before the midterms, Jacob Weisberg came on the show to identify eight cowards, including Supreme Court Chief Justice John Roberts, who have enabled the second Trump regime. His charge was that the Chief Justice had become too political. My guest today is no fan of Roberts. But she suggests that this political sin pales in comparison with Roberts’s sin of originalism.

Rachel Shelden is a historian at Penn State, and her new book, The Political Supreme Court, argues that the court was political by design for its first hundred years. Everybody knew it, she says. And that, in itself, wasn’t a problem.

It’s only recently, she reminds us, that we’ve invented the idea that the court is supreme. The justices had no grand courtroom until 1935, sitting in what everyone called the basement of the Capitol. And no robing room either, with justices dressing in front of other lawyers. They came to the bench from cabinets and governorships and Congress, they rode circuit and held jury trials in their own regions, and when they were done they wrote newspaper articles about their own constitutional views. None of this was thought improper, because the Constitution was understood as a political document that belonged to everybody, rather than a legal one that only belonged to the Supremes.

So where did the fiction of legal holiness come from? It began in the 1880s, Shelden says, with the professionalization of the law. It was marked by the founding of the American Bar Association and the establishment of professional law schools. Out of all this, America got the idea that the Supreme Court is the law above the law. That it should never be political.

Originalism arrived a century later to supply the scripture. Bork, Meese, Scalia, and now a bench of self-professed originalists claiming the authority of a founding generation that would have been horrified by a court this powerful and (dishonestly) political. A deep irony, Shelden calls it. The sin of originalism. Not particularly original, but very sinful.

FURTHER READING

•   The Political Supreme Court: A Forgotten History (University of North Carolina Press), by Rachel A. Shelden.

•   Supremacy: How Rule by the Court Replaced Government by the People (W. W. Norton), by Nikolas Bowie and Daphna Renan.

•   Rachel Shelden, Talking Points Memo.

•   KEEN ON AMERICA episodes cited: Jacob Weisberg on collaboration in the Trump era, and Michael G. Miller on the breaking of the Voting Rights Act.

ABOUT THE GUEST

Rachel A. Shelden is associate professor of history at Penn State and director of the George and Ann Richards Civil War Era Center. She took her doctorate at the University of Virginia and is the author of Washington Brotherhood: Politics, Social Life, and the Coming of the Civil War. She sits on the Historians Council on the Constitution at the Brennan Center and writes for Talking Points Memo. The Political Supreme Court: A Forgotten History is pub