1. The Supreme Court has always been the scandal of American democracy. How do you justify the power that nine unelected judges—almost all of them, historically, white men—wield in a society that styles itself a democracy? 2. That scandal reached a peak in the last third of the twentieth century, when a combination of hard-right judicial theorists (Robert Bork and Antonin Scalia among them) and nervous liberals started worrying about what was called “the counter-majoritarian difficulty” or the “counter-majoritarian dilemma.” 3. The result of that reconsideration of the Court and judicial review was, among other things, the theory of constitutional interpretation that we call originalism. Originalism held that the only justification for the Court reviewing and overruling the decisions of […]

During the Roosevelt Administration, they were known as the Four Horsemen (of the Apocalypse). They were Justices Butler, McReynolds, Sutherland, and Van Devanter. They voted, again and again, against the New Deal. This is what they looked like. Tonight, with Trump’s choice of Brett Kavanaugh, we have the Five Horsemen. They are Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and, once he’s confirmed, Kavanaugh. They will vote, again and again, against whatever progressive legislation Congress and the states manage to pass in the future. This is what they look like.