Our Rogue Supreme Court

The current incarnation of the US Supreme Court has chosen to ignore historic norms of judicial behavior, precedent, rationality, and morality in its drive to expeditiously impose its regressive agenda on America. Blue State Governors have an opportunity to constrain the Court’s activist agenda for America but it will require the Governors to implement a novel strategic plan.

There are only four options that might curtail the Supreme Court from re-making America as it was:

    • Restrict the Supreme Court’s jurisdiction over certain subjects
    • Increase the number of Supreme Court Justices
    • Ignore the Supreme Court’s rulings
    • Create “pre-existing conditions” which will change the Justices’ politicojudicial calculations

Given the current composition of Congress, the first two options are not politically viable.

Ignore the Supreme Court’s Rulings

The Supreme Court has no power to enforce its own rulings, this responsibility falls to the President. While there have been one or two Court decisions which were not enforced, as Laurence Tribe and others have stated, “the rule of law would fall apart if people just thumbed their noses at the Court…”

So ignoring Supreme Court decisions is not the preferred option, at thus time.

Create “Pre-existing Conditions” Which Will Change the Justices’ Politicojudicial Calculations

The Supreme Court Justices are assuredly not blind to the effects that their rulings will have on the American public, and Justice Alito specifically stated so in the Court’s decision to overturn Roe v. Wade. They are also eminently aware that the Supreme Court’s authority and legitimacy arises from the public’s trust in the Court and a belief that the Court is meeting the needs of the public.

Excepting the Justices who are absolute ideologues, most Justices, when deciding a case, will make a mental calculation as to how they believe their decision will be received by the American public. Here is where factors external to the written law can influence the Supreme Court’s decision-making process.

The only way to curtail our rogue Supreme Court is for the Blue State Governors to create the “pre-existing conditions” which will alter the Justices mental calculations as to how the Court’s decision will be received by America and whether an unpopular Supreme Court ruling might impact the Court’s position as the ultimate judicial “decider.”

Toward this end, a confederation of Blue State Governors should announced that their States will prioritize the health, safety, welfare, citizenship, and education of their citizens above all other issues. They should make it absolutely clear that should the US Supreme Court subsequently impose a mandate which interferes with the Governor’s responsibilities to protect the residents of their State, then the Governor will use his/her authority to prevent the Supreme Court from adversely impacting the State’s residents, even if that means ignoring the Court’s ruling.

Examples of issues that would fall under the umbrella of “protecting the public” would be issues pertaining to:

  • the need to reduce firearm deaths
  • protecting the voting rights of all citizens 
  • protecting a person’s right to control their own body
  • ensure that the public is educated based on science and historical facts
  • aggressively teach civics and the responsibilities of citizenry to all students
  • protecting their constituents from intimidation, violence, discrimination and environmental degradation.

With this “pre-existing condition” in place, I believe that it is extraordinarily unlikely the Supreme Court will allow itself to be put in the position of having to issue a ruling which would precipitate an unresolvable Constitutional crisis that had the potential to delegitimize the Supreme Court (which are a concern of the Justices Alito and Roberts) and challenge its position at the pinnacle of America’s Judicial hierarchy. As a result, the Supreme Court’s aggressive shift to the right will be mitigated.

While the proposed solution is a marked change in the way America has operated, our options are limited and time is of the essence because if we continue to accept the status quo, we will assuredly watch the the lights in the “city upon the hill” go out as history’s longest running experiment in multicultural, liberal, constitutional democracy slides toward authoritarianism.

Hayward Zwerling 

13 February 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

An annotated and longer version of this article is Our Illegitimate, Illogical, and UnAmerican Supreme Court .

Addendum 2/20/2023: Added reference regarding Alito and Robert’s concern regarding the Court’s “legitimacy.”

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