Federal judges appointed by President Trump have advanced an activist politico-judicial agenda that prioritizes anti-abortion and pro-gun policies over the health of Americans. As the first priority of all politicians is ensure the safety of their constituents, Blue state Governors must create a “pre-existing condition” that has the potential to dissuade the Supreme Court Justices from issuing future edicts that will be injurious to the health of Americans.
Two recent Supreme Court rulings illustrate how the Justices’ politico-judicial agenda will harm the health of Americans.
In New York State Rifle & Pistol Association v. Bruen the Supreme Court deprecated “laws (that) were intended to reduce violence” and as a result “it’s likely that we’ll see increases in gun violence.” In his dissenting opinion, Justice Beyer wrote that Bruen “make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”
In the Supreme Court’s decision to overturn Roe v Wade (Dobbs v. Jackson Women’s Health Organization), the three dissenting Justices wrote that the decision will “… compel women to carry to term a fetus with severe physical anomalies… (who is) sure to die within a few years of birth. … (even if the pregnancy put the woman at) … risk of death or physical harm.”
Clearly the Supreme Court is now prioritizing a political agenda over the health and safety of Americans.
Unfortunately, history has demonstrated that when the public believes their health or safety is threatened, many will abandon democracy if an authoritarian form of government promised to keep them safe. Today’s Supreme Court decisions are playing into the hands of the authoritarians.
As our political system is now in an epic battle between forces of democracy vs. autocracy, it is essential that our elected political leaders force the Supreme Court to prioritizing the safety of Americans over all other issues.
There are only four options which might curtail the Supreme Court from continuing its activist politico-judicial agenda:
1. Congress could restrict the Supreme Court’s jurisdiction over some subjects
2. Congress could increase the number of Supreme Court Justices
3. Governors could refuse to allow the enforcement of selected Supreme Court rulings
4. Governors could create “pre-existing conditions” which may persuade the Justices to temper their judicial rulings.
Given the composition of Congress, the first two options are not politically viable. The third option is least desirable, as Laurence Tribe said, “the rule of law would fall apart if people just thumbed their noses at the Court…”
The Supreme Court Justices understand that the Court’s legitimacy arises from the public’s belief that the Court is meeting the needs of the public. They are also aware that they have no power to enforce their own rulings. As a result, prior to issuing a ruling, most Supreme Court Justices will make a mental assessment as to how their ruling will be received by the public and implemented by the appropriate authorities. Here is where factors external to the written law may influence some of the Supreme Court Justices’ decision-making process.
The only way to force the Supreme Court Justices to prioritize public safety over their political agenda is for the Blue State Governors to create “pre-existing conditions” which would cause the Justices to be concerned that a particular judicial ruling might not be accepted by a state, the American public and/or enforced by the requisite institutions.
Toward this end, a confederation of Blue State Governors should announced that their States will henceforth prioritize the health and safety of their constituents above all other issues. The Blue State Governors should make it absolutely clear that if the US Supreme Court imposed a mandate which interferes with the Governor’s responsibilities to protect the health and safety of their residents then the Governor will use his/her authority to protect the health and safety of their constituents, even if that means preventing the enforcement of the Court’s ruling in their state.
Should states refuse to accept and enforce the Court’s edict, it would precipitate an unresolvable Constitutional crisis, potentially delegitimize the Supreme Court (a concern already voiced by Justices Alito and Roberts), and challenge the Court’s position at the pinnacle of America’s judicial hierarchy.
With this “pre-existing condition” in place, and the potential ramifications that might follow, I believe that it is extraordinarily unlikely the Supreme Court will issue a ruling that had the potential to precipitate this judicial Armageddon.
While this proposed solution is a marked change in the way America has operated, our options are limited and time is of the essence. If we continue to accept the status quo many, many more Americans will die needlessly and our democracy will be further undermined.
Hayward Zwerling, M.D.
17 April 2023
Addendum added 2/28/2024
Since this essay was originally published, several states have ignored or said they may disregard future Supreme Court rulings. Utah stated they reserve the right to ignore future Court rulings and both Texas and Hawaii have already done so. While a decision to ignore Supreme Court rulings may sound “unacceptable,” America’s politico-judicial system has already irrevocably changed as many politicians, judges and justices have long forsaken America’s historic norms of political and judicial behavior. Rational America must recognize this is the new reality and begin to play by the new politico-judicial rules if we hope to create a better and more equitable America for all.
H. Zwerling 2/28/24
A more annotated version of this article can be read here.