Our Illegitimate, Illogical, and UnAmerican Supreme Court

Synopsis:

  • The Supreme Court has forsaken historic norms of judicial behavior, precedent, rationality, and morality in its drive to expeditiously impose its retrogressive agenda on America.
  • While the Federal remedies are currently politically unrealistic, Blue State Governors have an opportunity to mitigate this problem for their state’s residents, but it will require a novel strategic plan. (Skip to conclusion. Abbreviated version of this article.)

Introduction

The US Supreme Court has completed its transformation from the penultimate court of the judicial branch of our tripartite Federal Government (Executive, Legislative, and Judicial) to an activist, right-wing, politico-quasi-judicial entity.

As the Court has strayed far from our Founder’s intended function of the Supreme Court, the remaining political actors in our government, including both state and federal politicians, must now adjust their political calculus if our democracy is to stand the test of time.

Our Illegitimate Supreme Court

When Mitch McConnell was Senate Majority Leader, he packed the US Supreme Court with three right wing ideologues. Two of these seats were literally stolen from the Democrats when McConnell chose to ignore “previously unquestioned (Senate) norms (which dictated the vacated Supreme Court seat) had been President Barack Obama’s to fill”.

McConnell decided he would not allow President Obama’s Supreme Court nominee (Judge Garland) from having a Senate confirmation hearing for two year so the public had the opportunity to have input into the selection process during the next Presidential election.

Six years later McConnell reversed himself so Trump could appoint Judge Amy Coney Barrett a mere two months before the end of Trump’s first term.

The second seat was filled by Trump nominee Judge Kavanaugh, who had credible accusation leveled against him prior to and during the confirmation process but the FBI was prevented from conducting a comprehensive investigation into those allegations.

Our Illogical Supreme Court

The six right wing justices have abandoned logic and objective reality in their efforts to remake America in their image.

For example, in New York State Rifle & Pistol Association v. Bruen the Supreme Court fabricated a new Constitutional right for Americans to carry guns in the public and deprecated those “laws (that) were intended to reduce violence.” This will ensure that more guns will be in the midst of contentious and crowded public venues and “it’s likely that we’ll see increases in gun violence” as it has been repeatedly established that “more guns” will result in “more gun deaths”. Also see here.

To be clear, the Supreme Court prioritized the right to carry a firearm in public over public’s safety; and Justice Alito said as much in his ruling.

As Justice Beyer wrote in his dissent, Bruen “make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”

The Court has also abandoned history, rationality, morality, and public-safety when they chose to rescind a “woman’s (Constitutional) right to decide for herself whether to bear a child” in the Dobbs decision. 

First, the Dobbs decision was based on an historically inaccurate understanding of the history of abortion in America. 

Second, the Dobbs decision was irrational as it:

Third, the Dobbs decision was egregiously immoral as

    • “… a woman (or girl) will have to bear her rapist’s child … no matter if doing so will destroy her life.” 
    • the “State will be able to impose its moral choice on a woman.”
    • it will increase inequity in America. Financially advantaged women will be able to travel to another state to obtain an abortion while indigent and less uneducated women will be forced to incur the life altering and adverse financial consequences of being forced to carry their unwanted pregnancy to term.

Finally, the Dobbs decision has abandoned any regard for public-safety as many less-advantaged women will seek out abortions in back-alleys, which will inevitably result in needless death and injury.

Our UnAmerican Supreme Court

The current Supreme Court have willfully ignored legal precedents, the judicial process, and judicial restraint whenever it helped to advanced the right-wing Justices’ political objectives.

The Court’s UnAmerican Contempt for Legal Precedent

All prospective Supreme Court Justices have reaffirmed their belief in the importance of legal precedent (the doctrine of stare decisis) during their confirmation hearing. However, there is now a new “BUT” regarding stare decisis as one or more of the right-wing Justices have affirmed that: 

    • there are “precedents” and “superprecedents” and only the former should be recognized as true precedent
    • “constitutional precedent is merely a matter of court policy or discretion

Most legal experts acknowledge there are times that a Supreme Court precedent should up overturned, such as when: 

    • the precedent “was wrongly decided” 
    • the public “disagree(s) about general background principles” of the prior precedent or 
    • the precedent “offends basic moral principles”

However, the Supreme Court’s decision to overturn the Roe v Wade (Dobbs v. Jackson Women’s Health Organization) met none of the recognized criteria for overturning a precedent. 

More egregiously, the decision to overturn the Roe v Wade was the first time in US history that the Supreme Court rescinded a Constitutionally guaranteed freedom which made one group of Americans less free.

More profoundly, as stated in the Court’s dissenting opinion: “Weakening stare decisis creates profound legal instability. And … calls into question this Court’s commitment to legal principle. … today’s decision takes aim, we fear, at the rule of law.” (Italics added for emphasis.)

The Court’s UnAmerican Contempt for the Judicial Process

Historically, the Supreme Court mandated that all cases be thoroughly vetted by the lower courts before the case reached the Supreme Court. This process would ensure all legal issues were addressed, leaving only unresolved Constitutional issues and conflicting lower court decisions for the Supreme Court’s docket.

The right-wing Supreme Court Justices obviously believe that relying on America’s historic judicial processes will delay their ability to alter America to their liking. They are now pull(ing) active cases away from the lower courts before the lower courts had a chance to create a judicial track record which might be difficult or embarrassing for the Supreme Court to overrule. 

In 2000, the Supreme Court pulled an in-process case from the Florida Supreme Court, in which Al Gore was contesting the results of Florida’s Presidential election. The US Supreme Court told the state of Florida to stop conducting their manual recount (a process underway) because it had the potential to “irreparable harm” Bush and cast “a needless and unjustified cloud” over his Presidency. They then awarded Florida’s electoral votes to George W. Bush, without a recount, making George W.Bush our 43rd President.

In his dissenting opinion in Bush v. Gore, 531 U.S. 98 (2000), Justice Breyer wrote “The Court was wrong to take this case.” 

The Court’s UnAmerican Contempt for Judicial Restraint

Not content to simply pull cases away from the lower courts, the Justices are now advertising for particular types of cases that will allow them to more quickly advance their agenda. For example, “Justices Samuel Alito, Clarence Thomas and Neil Gorsuch have all called for a (religion) case that would provide a vehicle for overturning a precedent” so the Court can expeditiously foist their religious views on the rest of America.

The Court has also decided that hearing cases in Court, which would necessitate explaining the legal opinion, is an impediment to their activist agenda. So, they now frequently issue unsigned late night rulings, the shadow docket, for cases that have not been argued before the Court, even if for cases that have national implications such as on issues like climate change, birth control, Covid-19 restrictions, abortion, evictions moratorium, and immigration policy.

Lawyers Mourn the Court’s Loss of Legitimacy

Lest the reader think I, a non-lawyer, am pontificating on an issue I know little and for which there is no supporting data, I have endeavored to provide references to the issues I have addressed above.

Regardless of my opinion, many of America’s most important legal scholars have also come to the conclusion that the US Supreme Court has strayed far from its intended role in America’s judicial system.

Linda Greenhouse, Yale law professor, legal journalist, and long-time Supreme Court observer wrote:

“The arrogance and unapologetic nature of the (Justices’) opinion (overturning Roe v. Wade) are breathtaking”

“What you (Justices) have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.”

Laurence Tribe, University Professor Emeritus at Harvard Law School wrote:

“I think citizens should look at the Court as an inherently political institution

“We now have a Court that is pushing the country in a direction that I think is frighteningly authoritarian.”

Both of these Court watchers and legal scholar have essentially concluded that the Court is advancing, an activist, political agenda, and it is no longer fulfilling its Constitutional role in our tripartite government.

Linda Greenhouse stated that the Court’s uncodified compact with America was, essentially, that Americans would “…give us (the Justices) all this great power, and in return we (the Justices) give you (America) predictability, stability, and, ultimately, what you want.” Clearly, the current Supreme Court has broken this compact with America.

And Tribe said:  The Justices’ “… independence is of value (to Americans) precisely when they (the Justices) perform an important function: both making democracy work better and protecting those who can’t protect themselves effectively through the political process… (but)… “When they’re not performing that function, then we really ought not to respect their work and give it a lot of weight.”

Here Are Our Options

For all of the reasons listed above, I believe that the Supreme Court is now an immediate threat to the future of America’s 2.5 century experiment in incrementally creating an ever more egalitarian, multicultural, free, economically robust, democratic society.

There are only five options available to deal with this renegade Supreme Court: 

    1. Continue the status quo
    2. Jurisdiction-Stripping (Restrict the Supreme Court’s jurisdiction over certain subjects)
    3. Ignore the Supreme Court’s rulings
    4. Increase the number of Supreme Court Justices
    5. Create new, consequential “pre-existing conditions” which alter the Justices’ politicojudicial calculations

Continue the Status Quo

Accepting the status quo and waiting for the Court to change without prompt intervention, will ensure that the Supreme Court will continue its vendetta against individualism, multiculturalism, public safety, morality, rationality and representative democracy while remaking America in the image of Russia’s or Turkey’s version of authoritarianism. Thus, accepting the status quo is not an option.

Jurisdiction-Stripping

As Kia Rahnama wrote that “Legal theorists largely agree that the Constitution allows Congress to restrict the Supreme Court’s authority to hear cases on a specific subject matter, such as abortion.” This is known as jurisdiction-stripping. “Supreme Court, John Roberts, (when he) was serving as a special assistant to the Attorney General in 1981 … penned a memo for the department arguing in favor of Congress’ power to remove the court’s jurisdiction over certain subjects—reiterating the arguments advanced by many other conservative legal thinkers, including Antonin Scalia.”

While jurisdiction-stripping is an appealing option to contain our activist Supreme Court, the current composition of Congress would render any such Congressional initiatives an exercise in futility.

Increase the Number of Supreme Court Justices  

Recent surveys which have assessed the American public’s “confidence” in the Supreme Court have found that the Court’s approval rating has plummeted to its lowest level in American history. The most recent polls have found that <50% (25%, 40%) of Americans have “confidence” in the current Supreme Court.

While increasing the number of Justices on the Court could alter the Court’s judicial trajectory, only a minority of Americans (40%) want to increase the number of Justices.

As this would require an act of Congress, the polling data, and the current composition of Congress, expanding the Court is currently not a viable political option.

Ignore the Supreme Court’s Rulings

From the perspective of our Federal politicians, “It is a rarity for presidents to simply ignore decisions of the Supreme Court, although it has been done” once or twice.

At the state level, the Governor of Arkansas attempted to ignore the Supreme Court ruling ending segregation in the public schools. In response, President Eisenhower sent the military to Little Rock to force the integration of the public schools.

While the Supreme Court has no power to enforce the Court’s ruling, the President does. However, depending on the specifics of the Court’s decision, there may not exist a mechanism for the Federal Government to force a state to abide by the Supreme Court’s decision. 

Consider the issue “open-carry of firearms.” If a Governor announces that their state will not allow the open-carry of firearms and directs their state and local police departments to remove illegally displayed firearms, it is irrational to believe that the Federal government is going to physically take control of every state and local police station to enforce the Supreme Court ruling. With respect to abortion, imagine the Supreme Court banned all abortions in America and a Governor stated that they will use state resources to protect a woman’s right to have an abortion. Here too it is difficult to envisage an enforcement mechanism which the Federal government could employ to ban all abortions in the State.

Nevertheless, if every state chose to selectively ignore Supreme Court rulings it would have serious adverse ramifications for many Americans. As Daniel Epps, explained that if the Supreme Court loses its legitimacy in the eyes of the public, “it’s not really clear what the stopping point is… I see that as a fundamental threat to society.”

Tribe too concluded “We shouldn’t defy particular decisions of the Court. That’s where I draw the line. It seems to me that an orderly society and the rule of law would fall apart if people just thumbed their noses at the Court…”

So it would be preferable if neither the President nor the Governors choose to ignore Supreme Court decisions, for now.

Create New, Consequential “Pre-existing Conditions” Which Alter 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 Dobb’s decision. 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 illegitimate, illogical, and unAmerican 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 

12 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

Addendum of 2/13/23:

Minor revision were made to the last section, for clarity.

A much shorter version of this article can be found at Our Rogue Supreme Court.

 

Addendum of 2/17/2023:

Senator Wyden proposes ignoring a ruling by a Federal judge in article published by Vox.

 

Addendum 2/20/2023:

Added reference regarding Alito and Robert’s concern regarding the Court’s “legitimacy.”

Also see: There is only one way to rein in Republican judges: Shaming them.

 

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