Originalism ad absurdum

by David Benjamin

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” 

— U.S. Constitution, Article 1, Section 2

 

WASHINGTON, D.C.—The Supreme Court’s stunning decision on a landmark Texas case, Bessie Mae Flournoy v. Greg Abbott, testing the limits of the conservative legal theory of “originalism,” has thrown the nation’s highest court into an unintended quandary that renders it apparently incapable of hearing any arguments or reaching any decisions for the foreseeable future.

Legal theorists and Court-watchers are still trying to sort through the implications of this sudden development. While no one can credibly predict what comes next, every observer, looking back, agrees that it all started in Texas.

Barely two months ago, pathologically conservative Governor Greg Abbott introduced a bill in the Republican-dominated legislature to restrict voting rights in the Lone Star State to the “original” electorate defined by the United States’ founding fathers and enshrined in the “original” U.S. Constitution as submitted for ratification by the states in 1789. The measure passed swiftly, along party lines—with all Democrats opposed. Gov. Abbott hailed it as “a new birth of freedom, and that government of the right people, by the best people, for the properly propertied people, shall not perish from the earth.”

Drafted by the Federalist Society, Abbott’s “Restore the Republic” bill immediately rescinded suffrage, in local, state and federal elections, from all women and from all white men without property—“property” being defined as land, or real estate. Black males with property in Texas still clung to voting rights, but—unless they could prove that their forebears had not been “bound to Service (slavery) for a Term of Service” before President Abraham Lincoln’s Emancipation Proclamation—each of their votes shrank to only three-fifths of an otherwise identical vote cast by a white guy with a mortgage.

While conservatives hailed the Texas law as an overdue revival of “American values,” liberal lawyers immediately instigated litigation to invalidate Abbott’s bold stroke. The chosen plaintiff was Bessie Mae Flournoy, a suddenly disenfranchised black granny from Lonesome Dove, Texas, who had first voted for fellow Texan Lyndon Johnson in 1964 and had not missed an election since then.

Citing the potential impact on voting rights nationally, the Supreme Court fast-tracked Flournoy v. Abbott and scheduled arguments only nineteen days after the passage of Abbott’s thunderbolt. Staying in the fast lane, the Court—only a week later—announced its lightning decision, on a 6-3 vote, to uphold the new Texas voting restrictions. As it had done with its Roe v. Wade reversal, the Court thus opened the door to similar state laws in every GOP-dominated state. 

Few canny Court observers were surprised by these developments—until the other shoe dropped. 

The Court’s conservative majority was still gloating when Chief Justice John Roberts undertook a close reading of the Flournoy dissent, written by liberal Justice Ketanji Brown Jackson. In her objection to the majority’s decision, Justice Jackson wrote that “simple philosophical consistency requires that any judge who determines that a woman, or a white man who rents his lodgings, must forgo one of the basic rights of American citizenship, and who rules that the vote of every black man with property must be devalued by forty percent, must apply the same scrutiny to himself or herself. To be true to her belief in originalism and to her vote on Flournoy v. Abbott, any female Justice of the Court must deem herself voteless and, henceforward, ineligible to sit in judgment on any case before this Court. Moreover, any black justice’s vote on any case before this Court, from this day forward, must be granted only three-fifths of its previous weight.”

Justice Jackson’s dissent continued: “In this light, under Flournoy, the remaining eligible votes on this Court, as currently composed, amount to only 4.6 out of a possible nine. This number of votes on any future case, even if unanimous, would represent less than a quorum of the Court’s full complement and would call into serious doubt the force of the Court’s decision and would, in fact, very likely invalidate the decision. In sum, this Court appears to have voted itself out of business.”

In support of Justice Jackson’s dissenting opinion, Justice Sonya Sotomayor asked Chief Justice Roberts directly what she called “the $64 million vote question.” She said, “Mr. Chief Justice, does this mean that me and Sonya, Elena, Amy, and a two-fifths chunk of old Clarence there are shit out of luck?”

After pondering the point for what seemed like an hour but was measured by the Court timekeeper as only 47 seconds, the Chief Justice replied, “Yeah, I guess.”

Before a stunned and confused gallery of press, lawyers and the public, Roberts then hurriedly gaveled an adjournment and did not re-convene the Court ’til the following week, when he offered the Justices the option of reconsidering their votes on Flournoy v. Abbott. In doing so, he warned Justices Sotomayor, Kagan, Barrett and Jackson that—because they’re girls—they would not be allowed to say anything. He also told Justice Thomas that he could only speak when spoken to and must eschew eye contact with the Chief Justice.

Hopes for reconsideration quickly encountered two problems, the first being that the available 4.6 votes fell short of a majority of the Justices present. This difficulty became moot when three rock-ribbed “originalists,” including Justice Thomas, defeated Roberts and Justice Brett Kavanaugh—2.6 votes to two—on the Chief Justice’s daring but futile motion to reconsider. 

Bowing to reality, Roberts adjourned the Supreme Court indefinitely. In doing so, he conceded implicitly that, by restoring the “original” (1789) composition of the electorate, half the justices had denied themselves their own right to vote for any public office from dogcatcher to president and rendered their status on the Court at least a legal paradox and, probably, five aggravated cases of “voter fraud.”

A number of Congressional leaders reluctantly noted that the only way to reverse the absurd Flournoy v. Abbott decision was to beseech Justices Thomas, Sotomayor, Kagan, Barrett and Jackson to resign, so that each might be replaced by a white male homeowner. That newly constituted Court could then vote to reverse Flournoy, which would allow the president eventually—after a few white guys either resign or die—to put black people and women back on the Court.

This solution hit several walls, however. One of the female justices, who spoke on condition of anonymity, said, “Hey, we don’t all gotta quit. By my count, we only have to unload three women, plus, you know, Clarence. My boy John—I mean, Justice Roberts—likes me best. And I’d vote with him every time from now on. I promise. Cross my heart and hope to die.”

This proposal met with scant enthusiasm and generated a rumble of antagonism within the Court. However, the issue of who might resign, and how many, faded into insignificance when Senate Minority Leader Mitch McConnell (R-Ky.) announced an alliance with Sen. Joe Manchin (D-W.V.) and Sen.Kyrsten “Big Bird” Sinema (I-Az.) to block any attempted high-court nominations by president Joe Biden until after the 2024 elections.

Sen. Sinema, typically blurting out the first thought that popped into her head, said, “Look, we let the old guy put a black woman—what’s her name? Diana Ross? Just kidding, guys!—on the Court. And look how that’s turned out.”