Cole argued that although the court purported to rely on historical precedent, it discarded historical facts that did not suit the preferred decision. He pointed to Justice Clarence Thomas’ opinion in the gun case, in which he minimized laws from the 1700s that restricted the right to bear arms.
“There is a triumph of originalism, but it is a faux originalism, because they are applying history and tradition in some cases and essentially writing off the history and tradition the court doesn’t like,” Cole said.
The court’s decisions this term, particularly overturning the constitutional right to an abortion, have endangered its place in American society, Cole said.
“It is important for people to see the court as acting on principle, not politics,” Cole said. “When you have a court that is lopsided and is willing to overturn a decision like Roe v. Wade, the public is likely to see the court as political, not principled, not open-minded and not deserving of the trust the Supreme Court has had for two centuries.”
He pointed to polls showing majority support for abortion access and low support for the Supreme Court. A Gallup poll released last week showed a historically low 25 percent of the country had a “Great deal” or “Quite a lot” of confidence in the Supreme Court, down 10 percent from a year ago.