Yet somehow we also managed to appoint SC judges without the senate stalling nominations to prevent the president from being able to appoint them.
Let's not pretend that the current situation represents anything like "normal", and further, that we don't all recognize that bad-faith actions by the Republican party are responsible.
> That was before the Senate hijacked the normal nomination process in 2016.
Yes, it was. What's your point?
Parent poster claimed that a non-political Supreme Court isn't possible, and in reality, the Supreme Court has been essentially completely non-political for all but about 22 years of its existence
Blockade of judges started in 2001, when Democrats declared Bush illigetimate, and decided that no judges would be selected. Republicans threatened the "nuclear option" (removing fillibusters). The "Gang of 14" in 2005 wrote ideological ground rules and approved a set number of judges to keep the nuclear option from being used.
Obama came to office, and the Democrats used the nuclear option - despite the gang of 14 framework, but then said that it doesn't apply to supreme court ballots. Republicans came in and decided that yes, it did apply.
We've been destroying our own government with crap like this for the last 20 years.
Textualism is just one of many excuses to rule the way you want to, as it leaves an immense amount of leeway to interpret.
A textualist reading of the First Amendment would permit the President to infringe free speech/religion/press etc. rights, as it says "Congress", and the "no law" bit would texutally forbid things like banning human sacrifice in religious ceremonies.
Textualists always find an out when they need one.
Do you have a better suggestion that’s less partisan and less prone to abuse?
Humans will always bring bias, but I can’t think of anything better than “interpret as it was plainly written and would have been understood by the people who wrote it at the time”.
Interpreting how it would have been understood at the time is quite subjective; how do we interpret how the Founding Fathers would've considered semi-automatic rifles or Facebook to fall in First/Second Amendment jurisprudence, or how far you can push the General Welfare Clause? The Founding Fathers themselves often disagreed on such things.
> Do you have a better suggestion that’s less partisan and less prone to abuse?
I'm of the opinion that textualism, in actual practice, is a highly partisan and heavily abused concept intended to be a thin veil over "I rule the way I want". I prefer the concept of a living Constitution; per Jefferson:
> I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Did you actually read the constitution end to end? It's not that big, and if you had you would have see that such things you propose aren't in line with the text
A textualist reading of the First Amendment doesn't permit banning human sacrifice in religious ceremonies.
A textualist reading of the Second Amendment doesn't permit banning of personally owned nuclear arms.
Textualists don't seem too interested in overruling the relevant unconstitutional laws in these cases.
(Yes, I've read it. It's vague - deliberately, I'd argue - in spots, like in defining "general welfare", and some folks like to pretend things like the Ninth Amendment don't exist at all.)
We can't because our system of government is broken. If the courts are going to stick to stricter interpretations of the constitution, the US is more likely to rapidly decline or fall apart completely than to fix its problems via legislation. We have only limped along this far because the courts have been lenient on that since our ~3rd major reformulation of our government (FDR). Our system of government cannot support a modern developed-world (go easy on me, citizens of other OECD states—we're kinda developed, anyway) state, without that leniency. The only hope is that monied interests will step in and force a fix because their money's threatened—we've got issues with 70+% support from the public that can't get any traction in the legislature, so clearly "lots of people want it" isn't enough (see again: our system of government is broken) so we have to hope rich people's interests align with ours, or nothing will be fixed. Given modern stateless capital and that so many rich Americans seem to have been working on a comfortable escape route from the US in the last few years, I'm not optimistic.
