The Supreme Court rightly upheld the Consumer Financial Protection Bureau's funding mechanism last week. But what's most striking about the decision is how the Justices reached it. The split opinion of the Court's chief fundamentalist, and the concurring opinions of several of his colleagues, revealed conflicting views about the importance of history in this case and what it tells us. Read together, they perfectly illustrate the false objectivity and anti-democratic tendencies of the conservative fundamentalist project.
In the case Consumer Financial Protection Bureau v. Regional Financial Services Association of America, the Supreme Court rejected a challenge to a law allowing the bureau to draw operating funds directly from the Federal Reserve. An industry group representing payday loan companies argued that the funding scheme was unconstitutional. Justice Clarence Thomas, writing the majority opinion, concluded that the bureau's funding was consistent with the founding understanding of the Appropriations Clause of the Constitution. Justices Elena Kagan and Ketanji Brown Jackson concurred, adding several reasons of their own, both historical and non-historical. Justice Samuel Alito, in his dissent, unravelled history to reach the opposite conclusion: that the bureau's funding scheme was unconstitutional because the earlier understanding of the Appropriations Clause required executive agencies to request funds from Congress annually.
Reading the justices' writings together highlights some of the many problems with the Supreme Court's attempt to resolve constitutional issues solely by reference to the distant past.
First, there's the historical debate between Thomas and Alito. Both are self-described fundamentalists, each looking back through the centuries for answers and each examining much of the same historical evidence. But they reach opposing conclusions about what that evidence means. Moreover, Thomas' conclusion is at odds with a lower federal appeals court decision that also argued for following the original meaning of the Spending Clause.
Setting aside the merits of these competing historical accounts, their very existence poses serious problems for fundamentalism. Fundamentalism claims to constrain judges by tying their interpretation of laws to a single “true” historical meaning. If that meaning varies from judge to judge, fundamentalism's claim to provide objective constraints rings hollow, even if all judges claim to be conducting fundamentalist analyses of largely the same material. Indeed, Thomas and Alito may reach different conclusions because history does not typically speak with a single authoritative voice on legal issues. Fundamentalist judges, on the other hand, are not neutral communicators of clear historical truths. Instead, they are subjective interpreters of the historical record. Their legal conclusions reflect the individual decisions each makes about which evidence is relevant, how it is relevant, and why it is relevant.
Kagan's concurring opinion highlights another problem with Justices Thomas and Alito's principledism: both justices reach their conclusions without considering much of American history. Their conclusions begin with medieval England and end just after the ratification of the Constitution, with an emphasis on British history before the American Revolution. In contrast, Justice Kagan focuses on the entirety of American history after the ratification of the Constitution, concluding that the bureau's funding plan “could have fit snugly at any other time in our nation's history.” In short, for Justice Kagan, it's important to understand not just what the Founding Generation thought, but how the Constitution has been understood over time.
Kagan's approach highlights the extent to which Thomas and Alito's fundamentalism is interested in what Thomas calls “pre-ratification” history to the exclusion of all else. For them, American history ends as soon as it begins; for Kagan, it continues for hundreds of years more. Similarly, Kagan's approach highlights the bizarre way in which their pre-ratification obsession gives monarchical law more weight than democratic law in constitutional debates, paying so much attention to the acts of the king while completely ignoring our own centuries of experience living and governing under the Constitution.
Even the Supreme Court's fundamentalist group is not united behind Thomas and Alito's pre-ratification obsession, as those who signed Kagan's concurring opinion demonstrate. Justices Brett Kavanaugh and Amy Coney Barrett joined Kagan and Sonia Sotomayor in embracing a broader historical frame of reference. This is especially noteworthy given that Kavanaugh and Barrett previously voted with Thomas and Alito's respective fundamentalist opinions in Bruen and Dobbs. Time will tell whether their shared views in this case signal a larger, more lasting realignment among the Supreme Court's fundamentalists.
Jackson's concurring opinion exposes another problem with Thomas and Alito's principled thinking: it is completely disconnected from everyday life. His concurring opinion focuses on the background to the creation of the Bureau and the Congressional intent behind the creation of its funding system, which sought to insulate the Bureau from lobbying influence by industry players it was meant to regulate. Jackson gives legal meaning to this background, warning his colleagues not to ignore Congress' policy judgments when the Constitution does not explicitly authorize the Court to do so.
None of this matters to either Thomas or Alito. Indeed, fundamentalism has so warped the justices' perspective that they discuss the relationship between King and Congress more than they do what the Court actually does or how its work affects people's lives today.
It is worthy of a sigh of relief that the Supreme Court continues to function. But it is still struggling with fundamentalism whose flaws are becoming apparent. Justices and others who oppose fundamentalism have offered the Court's fundamentalists some solutions, which they should follow: an approach to constitutional law that respects the American experience, not one that ignores, misrepresents, or undermines it.
