Re:Law firms pay Supreme Court clerks $400k bonuses – what a...
by nickff on Sunday September 27, 2020 @05:15PM
(#24610181)
Heller is an interesting one, though I disagree with your statement that it was invented from whole cloth. I see Heller as a good example of constitutional consistency. Over time, the courts have developed a range of standards, each of which applies to one or two amendments. I hope Heller is the first step in a rationalization of constitutional law, as there is no reason for certain rights to be more or less protected than others.
As to Marbury v. Madison, even (some) originalists believe in stare decisis, though it is a controversial topic.
Conversely, it could be said Scalia twisted the idea of "originalist" to suit his political ends. Heller in particular is a very consequential ruling that basically invented a new right under the second amendment from whole cloth. When originalists complain about "activist judges" it can seem intellectually dishonest.
There's also a good question about how originalists can even support Marbury v Madison and the concept of judicial supremacy in the first place, since it doesn't originate in any law. Right now they support it because they have durable power in the courts.