The End of Roe, continued: The Supreme Court's looming legitimacy crisis
Wherein I fail to take a chill pill
A friend suggested to me recently that I’m being a little *too* serious on here and that perhaps I should try to interject, at least occasionally, less dire content. I think that’s a splendid idea.
Having said that, and quoting the late great Howard Cosell, “but not today!”
My original intention was to walk through how the politics of all this might unfold. But I was stricken with a sudden (or years-in-the-making) attack of rage, so will spend a couple of posts writing about the Court itself and the ways that its current majority’s conduct and provenance leave us at the brink of a legitimacy crisis. Today, I’ll talk about its conduct. Next time, we’ll have a nice, light chat about how the current majority was constituted.
There was a time when the Court was a salve for all that ailed liberalism, about which some scholars and activists have long been warning was eventually going to come back to bite it, hard (here’s one trenchant example). Now, the Court is in the hands of an unconstrained reactionary majority, hellbent on fundamentally remaking American society.
Adam Serwer wrote a blistering piece over the weekend about what he described as the “undead constitutionalism” that was the right-wing’s rationale for imposing its vision:
The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory….But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.
The conservative majority makes constant references to the nation’s histories and traditions as the only valid basis for anchoring rights. But it consistently uses history in the most haphazard, inconsistent and self-serving ways to achieve its purposes. An example of this came last week, when the Supreme Court tossed out New York’s century old gun laws. As Justice Breyer wrote in dissent in that case, “Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not ’consistent with the Nation’s historical tradition of firearm regulation.” For every decision of consequence, including the Dobbs case that ended the constitutional right to an abortion, wash, rinse, repeat.
And if you think Serwer’s characterizations are overwrought, consider Justice Alito’s concurrence in the gun case, in which he clucked like an internet troll that New York’s gun laws didn’t stop the recent Buffalo massacre.1 As many others have pointed out, by that standard, we should get rid of *all* laws, since none exist that have never been broken.
Another depressing example of this kind of jurisprudence was the 2013 Shelby case, when the then 5-4 conservative majority gutted the Voting Rights Act (VRA). Justice Roberts’ opinion for the Court argued that the VRA’s crucial pre-clearance provisions violated the “fundamental principle of equal sovereignty” of the states. Which sounds great, except that, as the eminent conservative jurist, Judge Richard Posner pointed out at the time, there is no such principle. That preclearance clause required jurisdictions with histories of racially-motivated voting discrimination to receive federal approval to make voting changes. Roberts blithely asserted that, half a century after the passage of the VRA, we were beyond the need for such scrutiny. As Justice Ginsburg predicted in dissent2, as soon as preclearance was gone, conservative legislatures would rush to impose new restrictions, which many did in a matter of days (sound familiar?)
The opinion in the Kennedy case, handed down yesterday and a relative afterthought in light of Friday’s earthquake, is a landmark case in its own right. And the majority opinion is in some ways particularly disturbing. The Roberts Court has continued to widen its conception of what qualifies as constitutionally protected “religious freedom,” while also chipping away at that other pesky part of the First Amendment, the establishment clause. In the Monday case, which ignored another critical half century old precedent (though didn’t explicitly toss it), a Washington State high school football coach Joseph Kennedy sued for the right to pray on the field after games. Justice Gorsuch, ruling in his favor, said that Coach Kennedy, an employee of a public school district, “offered his prayers quietly while his students were otherwise occupied,” which the first amendment to the Constitution affords him the right to do.
But the record shows that is not what Kennedy was doing. He was praying at the fifty yard line after games, invited players, coaches and spectators to join him and did so increasingly vocally over time. In fact, when the Ninth Circuit appellate court heard the case, Judge Milan Smith, a George W. Bush appointee, noted that Kennedy’s attorneys were simply lying about his actions. Here’s a piece of Judge Smith’s summary of the factual record in the case:
And from an exhibit to the case included in Justice Sotomayor’s dissent, here’s what that “private prayer” looked like.
To get where he wanted to go, Gorsuch simply ignored this record.
One (i.e. myself) could continue in this vein more or less indefinitely. As I noted in my last post, in his majority opinion in the Dobbs case, Alito said that throwing out Roe did not implicate other fundamental rights. But as the dissenters argued, there is no reason to believe Alito and his allies. It’s clear to many Americans that they will decide the most consequential cases based on their ideologies and consistent with the preferences of the political movement that brought them to power. The increasingly blatant relationship between their rulings and the actions of elected officials only crystallizes their view of the law. It exists to serve their worldview.
“Now hold on,” many will say. Isn’t this just the mirror image of what liberals have been doing forever? Indeed, conservatives have long decried the judicial activism and disregard for the Constitution by which liberal jurisprudence recklessly upended the ordered liberty conservatives say they cherish. But as Josh Marshall wrote last week, the Roe decision itself was not the culmination of a determined and ruthless political movement decades in the making to reshape our laws and political system. The 7-2 Roe majority mostly consisted of Republican appointees. Yes, that was a different Republican Party. However, it is very clear that Roe’s author, Justice Blackmun himself, did not go into the case determined to reach a particular conclusion. He studied the history, science and medicine of the issues for months. He certainly hadn’t plotted for decades prior to his appointment that, once on the Court, he would indeed fulfill a lifelong dream by writing the opinion he did.
Reasonable people have criticized various aspects of Blackmun’s opinion since the day it was handed down. But for anyone who still clings to the idea that our judges should do more than merely rule consistent with their unbounded political and ideological predilections, there is no parallel between the Roe ruling and the Dobbs ruling.
On the larger point, Marshall says: "The idea that you would create a political movement, harnessed to one political party, dedicated to building up a pipeline of future judges and justices, often all but created in a test tube to overrule specific decisions, was an innovation of the modern conservative judicial movement with no precedent. It had never happened before. And even as judicial liberals have belatedly reacted to that movement, they haven’t replicated it or really even tried. Ruth Bader Ginsburg is the only modern Democratic appointee who was in any sense an activist or associated with a specific rights focus before joining the Court. Even in her case she wasn’t bred for the purpose or ensconced in anything like the right’s incubators of future judicial talent. Breyer, Kagan and Sotomayor are each liberals and have ruled more or less predictably on the Court. But none of them are bred-for-the-purpose ideologues like most recent Republican appointees."
The implications here are profound, going to the heart of what are supposed to be the separation of powers fundamental to our system of government. Indeed, that not-coincidental symbiosis between the Court majority and right-wing activists in the states - a depressing exemplar of which is Justice Thomas and his coup-plotting wife Ginny - makes a mockery of the separation of powers. And to return to what I said a moment ago, that directly bears on the Court’s looming legitimation crisis.
I’ll save for next time the Court majority’s provenance and how minority rule has enabled it, another source of its devolution and growing illegitimacy.
Incidentally, a major new study shows that weakening gun possession laws in the United States is associated with a massive spike in violent crime. From the abstract: “Any crime-inhibiting benefits from increased gun carrying are swamped by the crime-stimulating impacts.”
Ginsburg’s classic phrase at the end of her dissent in Shelby reads: “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
These posts are great! Not too serious at all! And, here's a serious question I haven't been able to find an answer to... What does it mean when a SC decision is based entirely on the wrong fact pattern. The Majority Opinion emphasized the quiet prayer-- but it wasn't! I'm actually okay with a football coach *quietly* praying after a game and not implicitly coercing players. And it seems like the majority opinion is pretending that's what he did. And, if that the case, to what degree does it actually open things up for coaches to implicitly coerce prayer in the future?
It definitely opens up the possibility of coaches doing what you described. A friend reminded me that what happened in Washington happens all the time in the South, including in NC.