We’ve had liberal Supreme Courts and conservative Supreme Courts. My fear is that the Court we have now will be unlike anything we’ve ever had: a Court that crosses the line into illegitimacy.
It’s bad enough to have partisan “politicians in robes.” But when the Party of which the majority of Justices appear more and more to be “partisans” is the unprecedented atrocity that today’s Republican Party has become, it’s a whole new level of bad.
Below, I’ll describe some of the evidence on which my fear is based.
(I’d like to know whether our most perceptive constitutional scholars — people of the ilk of Lawrence Tribe, for example — if they, too, worry that we’re heading into a time on the Court more corruptly politically partisan than any we’ve had before. Although I’ve studied and taught about constitutional history, I don’t feel able to judge whether the corporatist Court during the period from the 1870s into the New Deal era of the mid-1930s was as corruptly politically partisan as what this Court seems poised to become.) Something is beginning to simmer in the body politic about this Court. As is mentioned frequently these days among the commentariat, the public standing of today’s Supreme Court has lately sunk considerably. Only 40% of the American public have a favorable view of the Supreme Court now, according to Gallup. 62% of Americans say that “politics, not law” govern the Court’s decisions. A professor of law at the University of Baltimore School of Law, Kimberly Wehle, recently wrote that “It is not off the table that one day the court will no longer be treated as legitimate by the populace. That its rulings will be ignored. It doesn’t have its own law enforcement apparatus or army, after all.”
The question arises: if it becomes clear that the Court has gone beyond the pale, that it no longer meets the minimal standards for being the final arbiter of “justice” in the United States, what then?
- What could and should the liberal justices do? If the Supreme Court is no longer worthy of respect, should the liberal justices go beyond writing the usual kind of dissents and blow the whistle?
- When, if ever, would it be right for a President of the United States to refuse to obey the judgments of a Supreme Court judged to be politically corrupt?
- What could the Congress do to restore legitimacy to the Court (court-packing? impeachment?)
- If our Court crosses the line into outright illegitimacy, how should that issue be dealt with in our election process?
It may seem too soon to be worrying about such possible scenarios. But just as the American military generates battle plans for a whole range of contingencies, even for improbable events, so perhaps would it be wise to think some of this through.
(Also, potentially, there might be some deterrent effects from firing some sort of shots across the bow, so that the five-person right-wing majority that has been losing even Chief Justice Roberts on some of their more alarming moves (see below) will not feel so completely invulnerable in their assumed-to-be life-time appointments.)
(One immediate thing: If I were President Biden, trying to select the best possible African-American woman to sit on the Supreme Court, I’d keep an eye open for the kind of fighting spirit that may be needed on the liberal minority in the years to come.)
So where are the lines into utter unacceptability? And what recourse is there — would there be-- other than just accepting the unacceptable?
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How Well-Founded Are My Fears?
To speak very briefly about the reasons for my concern that we’re heading into unprecedentedly injudicious territory.
- I’ve been deeply disturbed to watch how a stunning number of the worst decisions in the history of the Court have been in recent years. Right up there with the Dred Scott decision of 1857, declaring that the black man had no rights that the white man is obliged to respect, and the Plessy vs. Ferguson decision of 1896 that “separate but equal” would be good enough, when it was as obvious as could be that “separate” would be very far from “equal,” have been some Republican-serving decisions by the Roberts Court: like the opening of the floodgates to money, with Citizens United, where the Republicans in robes disingenuously declared they envisioned no problem of money corrupting our politics; and the gutting of the Voting Rights Act, in Shelby, with the equally patently dishonest argument that they saw no reason that minorities still needed such protections. (Oh and, going back a little further, let’s not forget the Bush v Gore decision, which many at the time put out there with Dred Scott.)
- And most recently, the refusal of five justices to put a stay on Texas’s robbing Texas women of a right that the Supreme Court had declared, and whose repeal had not yet been argued or decided by the Court showed outrageous contempt for the constitutional process.
- Another only somewhat less atrocious decision, with the same five justices again using the “Shadow docket” for apparently partisan purposes, removed a stay barring the use of redistricting lines in Alabama that the lower courts had imposed after careful study because the gerrymandering had been found to be discriminatory against Alabama’s black population. The majority claimed not to be rendering any opinion on the merits of the case, but an impartial Court would presumably have deferred — until the merits were argued before them — to the judgment of the lower Courts.
All of these raise the alarms about a Court whose majority — and thus whose decisions — are not just “conservative” ideologically, but are also politically corrupt.