Legal journalist Madiba Dennie on originalism and questioning the courts
Journalists, citizens, and even lawyers hold on to progressive victories of the past and the opaque, mysterious workings of the U.S. Supreme Court, reluctant to admit the increasingly partisan nature of court decisions, according to legal journalist Madiba Dennie. Particularly regarding the flawed theory of originalism, “I think it’s important to tell non-lawyers … ‘Hey, this is legally and intellectually and morally bankrupt. There’s nothing okay about this.’”
While the court was created to interpret the law, the public should not hesitate to scrutinize those interpretations when justices make bad decisions, Dennie noted. “You don’t have to feel like, ‘They must know better than me,’” she said. “I see my role as telling people, you know, [the justices] can still be full of it.”
Dennie recently appeared with Moira Donegan, the Clayman Institute writer in residence, as part of the Feminism in Theory and and Practice event series. Author of the recent book, The Originalism Trap, Dennie also serves as deputy editor and senior contributor at the critical legal commentary website Balls and Strikes.
The site emerged in response to problems with what the courts were doing as well as how the media covers the courts. Balls and Strikes also sought to examine the premise of legal neutrality, particularly in light of who wrote the laws, who advocated for them, and why. People have been “trying to divorce politics and policy from law in a way that really didn't make sense,” Dennie said, “especially as, I would argue, the judiciary has really been acting as a legal wing of the Republican Party.” Dennie noted that stacking the courts with conservatives and those friendly to corporate interests has “transformed” the courts in recent years. She said, it’s “not getting through to people what the courts were doing and why it's bad.”
The name of the publication refers to a quote from Chief Justice John Roberts, who likened his job to that of a baseball umpire simply calling “balls and strikes,” but not pitching or batting. Dennie said she and her colleagues saw his analogy as flawed in multiple ways, starting with the reality that different umpires have their own strike zones. A recent Harvard Law Review piece further critiqued the concept, Dennie said, by noting that the justices always have gone beyond calling plays because they’re fielding the teams when they select which cases to hear. “It's just not true that it's this neutral, thoroughly impartial, abstract exercise; these are real political decisions that have real political effects on people's lives.”
Her writing aims to both educate people about the flaws of the court and to inspire action. She hopes some readers will begin thinking about court reform, term limits, court expansion, and other remedies.
In particular, as she addresses in her book, Dennie decried a recent move to originalism in court decisions, or the theory that if rights did not exist at the time the Constitution was written, then they can’t exist now. “It's an absurd way to think about, to do legal interpretation. Just an absurd way in practice.” She questioned why originalism would ever be effective in getting the best results, and also called out its uneven application. Originalism was employed in the Dobbs case that voided abortion rights, she said, theorizing that because the right to abortion did not exist originally upon the country’s founding, it should not exist now. “That is anti-intellectual in addition to just furthering the subordination of a whole class of people,” Dennie said.
The theory also was applied by the Fifth Circuit Court of Appeals in a domestic violence case, U.S. vs. Rahimi, when it struck down handgun prohibitions for individuals who had protective orders against them. Under originalism, the court held that because the government did not try to stop violence against women 250 years ago, it would be unconstitutional for them to do so now. “It was horrifying,” Dennie said. For the sake of pragmatism and political cover, the U.S. Supreme Court reversed the decision in part by suggesting a legal precedent from the 1400s – a grasping attempt to preserve originalism.
I think that there is some value in treating the court with a bit of irreverence. Instead of the emperors have no clothes, it's like the justices have no robes.
In her book, Dennie calls instead for an approach called inclusive constitutionalism, or interpreting the Consitution in furtherance of an inclusive democracy, meaning a society that extends full membership to all its residents and enables them to participate equally in the nation’s social, political, and economic life. She said, “[w]e should be focusing our legal interpretation on the goals of the Reconstruction amendments, to end oppression and bolster full democratic participation. And that should be our reference point for understanding any part of the Constitution.” While some have tried to apply historical precedents to make originalism more supportive of progressive aims and social justice, originalism should be dismissed completely as illegitimate, Dennie said.
People should set aside their hands-off reverence for the Supreme Court and push back on the court’s partisan agenda and spurious legal reasoning, Dennie suggested. Questioning the court is good. As part of her shift two years ago from lawyer to full-time writer, Dennie also has sought to have fun writing about the court, and hopes readers will enjoy learning to call out the court’s missteps. “I think that there is some value in treating the court with a bit of irreverence,” she said. “Instead of the emperors have no clothes, it's like the justices have no robes.”
She said she understands that some are reticent to question the august body or to feel they have the qualifications to second-guess justices, but she wants people to set those hesitations aside. “I am begging you listeners to know you do not have to accept what the court does,” Dennie said.
In addition to her work as a writer, Dennie is also the co-director of the Democracy Committee of the New Jersey Reparations Council, and was previously a counsel at the Brennan Center for Justice. Her legal and political commentary has been featured in The Atlantic, The Washington Post, and elsewhere. She has taught at Western Washington University and New York University School of Law. Dennie is a graduate of Columbia Law School and Princeton University.
