CHAUTAUQUA — Let’s pick up where we left off last week.

A speaker–a self-described liberal–at Chautauqua Institution this summer disagrees with the U.S. Supreme Court’s opinion taking race-based college and university admissions off the table.

Please consider the speaker’s answer to the first audience question.

Moderator: “This question is truly an omnibus: ‘Is this court the worst we’ve ever had?'”

¯ “It’s a good question. Many people would say, ‘This court is the most conservative that we have seen in generations, and it is a distressing court.'”

The court is the most originalist and most textualist in generations: It tends to focus not on justices’ policy preferences but on the original understanding of the Constitution and the text of other law.

Do honorable people disagree over what the original understanding is and what the text means? Yes, indeed, they do. Yet it’s one thing to seek this understanding and meaning. It’s another thing to bypass them and substitute one’s own policy preferences for the law, as judicial activists tend to do.

Originalism and textualism are unsurprisingly “distressing” to those preferring judicial activism.

¯ “And I fear that notions that there is anything like the law that is worthy of applying that sit outside of one’s political priors is a vanishing idea.”

Applying “one’s political priors” is what judicial activists tend to do. At the high court, judicial activism is diminishing.

¯ “For a long time, the notion that the president who appointed (justices), and the ideas that they would bring with them to the court, that was not a perfect match. These days those two things are completely overlapping. One of the most remarkable things about the Supreme Court is that there was a period in time during the 20th century when 10 Supreme Court justices in a row were appointed by Republican presidents. Thurgood Marshall joins the court in 1967. Ruth Bader Ginsburg joins the court in 1993. And between those moments, 10 justices in a row were put on the court by (Republican presidents), but many of them did not vote the way that the Federalist Society would have wished for them to vote. These days those views are gone.”

That’s largely true. In recent decades, Democrat appointees have been liberal judicial activists. The most recent exception is President John Kennedy’s appointment of Justice Byron White.

By contrast, no appointee of Republican President George Bush 43 or Donald Trump–neither Chief Justice John Roberts, nor Justice Samuel Alito, Neal Gorsuch, Brett Kavanaugh, or Amy Coney Barrett–is a judicial activist, much less a liberal one.

Those five plus Justice Clarence Thomas–the remaining appointee of President George Bush 41–hold six of the nine court seats.

Are any of these six justices perfect? No, they’re human beings. Nevertheless, a court this solid used to be the stuff of dreams.

Those who for decades railed against liberal judicial activism–not because they wanted conservative judicial activism but because they wanted originalism and textualism–should smile and be grateful that the court’s jurisprudential fulcrum–the swing vote(s)–is, depending on the issue, somewhere among Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.

If all the appointees of Republican Presidents Richard Nixon and Gerald Ford, or Ronald Reagan and Bush 41 had been this solid, the court would have been this solid decades ago.

¯ “This became such a prominent view that Justice Thomas is purported to have said, shortly after he joined the court, ‘I ain’t evolving.’ The notion is, sometimes justices come to the court, and they would sort of meet people from around the country, and they would evolve in their views.”

Notice, though, that in recent decades, such judicial evolution has been a one-way ratchet. No recent liberal judicial activist has evolved away from judicial activism. All evolution in recent decades has gone the other way.

This has generally been to liberals’ delight and conservatives’ dismay.

What’s “distressing”–to borrow the speaker’s word–to liberal judicial activists is that the one-way ratchet appears to have stopped.

¯ “‘I ain’t evolving.’ You might say, ‘Justice Thomas is a man of his word.’ You might also say, ‘He has changed in some respects. He’s more conservative than he was in the early ’90s.”

Whatever this means, it’s not meant as a compliment.

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Chautauqua Institution was the venue for the speaker. Chautauqua didn’t select the speaker. The speaker was selected by an organization that is legally separate from Chautauqua and whose principal location isn’t in Chautauqua.

A review of the organization’s Chautauqua speakers suggests that if the organization invites a liberal in 2024, the share of them who are liberals will have risen to 90 percent.

Although there’s no requirement that the organization be balanced, balance would serve not only Chautauqua but also the larger community well.

ç 2023 BY RANDY ELF