The Mahablog

Politics. Society. Group Therapy.

The Mahablog

An Out of Control Supreme Court

According to Mark Joseph Stern at Slate, law school professors are having apoplexy over the Supreme Court’s recent decisions.

At law schools across the country, thousands of professors of constitutional law are currently facing a court that, in their view, has let the mask of neutrality fall off completely. Six conservative justices are steering the court head-oninto the most controversialdebates of the dayand consistently sidingwith the Republican Party. Increasingly, the conservative majority does not even botherto provide any reasoning for its decisions, exploiting the shadow docket to overhaul the law without a word of explanation. The crisis reached its zenith between September 2021 and June 2022, when the Supreme Court let Texas impose its vigilante abortion ban through the shadow docket, then abolished a 50-year-old right to bodily autonomy by overruling Roe v. Wade. Now law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?

About a month ago I was reading that Republicans in Congress want a new constitutional convention so that the Constitution can be rewritten. This is rich, considering that Republians for years have pretended they revere the Constitution as something like Holy Writ, and they say it’s Democrats who want to violate it. It’s notable that Trump, in his infamous January 6 “fight like hell” rally speech, mentioned the Constitution more than a dozen times. For example:

“What an absolute disgrace that this can be happening to our Constitution.”

“We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.”

“And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.”

“Today, for the sake of our democracy, for the sake of our Constitution, and for the sake of our children, we lay out the case for the entire world to hear. You want to hear it?”

“I hope you’re going to stand up for the good of our Constitution and for the good of our country.”

Trump, of course, doesn’t know the Constitution from ketchup, and I doubt many in the crowd could pass a high-school level test on it, either. “Constitution” in this case is more of a mystical invocation of whatever they think “Americanism” is rather than the actual Constitution. The truth is that the Right hates the Constitution as written, because it protects the nation from the kind of thuggish authoritarianism they’d like to impose.

Back to Mark Joseph Stern:

The problem, it’s worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It’s that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it’s only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

“It’s hard to think about your own profession—the things you were taught, the things you believed in—abruptly coming to an end in rapid succession,” said Tiffany Jeffers, a professor at Georgetown University Law Center. “It’s hard to ask a law professor to dismantle all the training they had. It’s a difficult, emotional, psychological transformation process. It’s not easy to upend your life’s work and not trust the Supreme Court.”

It’s been a while since I quoted Charles Pierce:

I, for one, am happy to see Justice Elena Kagan slugging back at Justice Sammy “Strip-Search” Alito and his Federalist Society love-monkeys. While Dobbs gets all the attention, the final weeks of the last term were a veritable orgy of conservative policy dreamshots, and there very well might be a truckload of them to follow. 

Justice Kagan has been speaking publicly but generally about the legitimacy of courts. She’s not naming names or citing specific decisions, but she’s been saying things like this:

“I think judges create legitimacy problems for themselves – undermine their legitimacy – when they don’t act so much like courts and when they don’t do things that are recognizably law,” she said in New York earlier this month.

“And when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences,” she added.

Roberts and Alito both pushed back. Roberts tried to re-frame the issue as a simple disagreement about the law, but Alito said,

“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito, who penned the decision reversing Roe v. Wade last term, told The Wall Street Journal on Tuesday. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line,” he said.

Alito needs some correcting, I say.

Ruth Marcus warns that the next term could be worse than the past one.

Nothing in the behavior of the court’s emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation — and more are on the way.

Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state. …

…“They’re impatient,” Harvard Law School professor Richard Lazarus said of the conservative justices, especially the longest-serving, Clarence Thomas and Samuel A. Alito Jr. “They’ve spent a lot of time waiting for this majority to happen, and they don’t plan to waste it.”

If so, that is a perilous course for an institution whose very authority is grounded on the presumption of stability. If the majority insists on its current and hurried path, it risks deepening the very questions about the court’s legitimacy that have tormented the justices — divisions reflected in the bellicosity of their written work and that have erupted, in recent weeks, into their public debate. At a moment of extreme and increasing national division, change of such velocity and breadth is unhealthy not only for the court but also for a nation being asked to abide by its rulings.

See also SCOTUS Threatens the Planet from three months ago.

E.J. Dionne:

I know, I know, we are regularly lectured by justices that we are supposed to think of the court as nonpartisan. But that sentiment is belied by the ferociously partisan nature of the court’s recent rulings — and the highly partisan way this conservative majority was created.

It’s also laughable that conservatives, including the ones on the court, should be shocked that their bellicose use of the confirmation process and judicial power should inspire such fury from Democrats. For decades, it was Republicans who ran against liberal courts — and “judicial activism” and judges who “legislate from the bench.” It turned out they were happy to legislate away once they got the votes.

For what it’s worth, Justice Ketanji Brown Jackson disagreed with Gorsuch already. See also The Supreme Court Is On The Verge Of Killing The Voting Rights Act at FiveThirtyEight.  And for a good laugh, see Alexandra Petri.

My hope is that if the Democrats have the majority in Congress next year, they will at least try to increase the number of justices on the court. A message needs to be sent that the Court is not untouchable.

10 thoughts on “An Out of Control Supreme Court

  1. Is the quality of air and water important to the health and well being of the citizens of our country?

    Is global climate change a critical issue for the future of our country and the planet?

    I would wager serious money that if the justices were asked individually and gave completely honest answers to those two questions, nine of them would answer yes.  Then five or six of them would add "but not at the expense of corporate profits".


    If one can make a lifelong career of diminishing minority rights and solidifying white privilege without being a racist, then maybe John Roberts is not a racist.

  2. Dobbs tosses the 14th Amendment out the window. 14A protects minorities from having their rights stripped by individual states. The original context was African Americans. Well, tossing women’s rights out the window won’t stop with women; ANY minority is danger: women, POC, LGBTQ, Jews — you name it. No family left unaffected, ultimately. Pack the Court!

  3. I try not to pay attention to polling, but it seems unlikely Democrats retake Congress. If anything, I think voters are likely to offer the Court vindication.  

    • The abortion issue alone is destroying many Republican candidates around the country. Right now the Dems are expected to increase their majority in the Senate but will probably lose the House. But nothing is for certain.  

  4. I find the whole thing a big fat gamed system. Laws are written and passed in order to be sent to the court for covert(shadow docket) or overt (dobbs) rulings by people who were gerrymandered onto the court. The majority was over ridden to get the court the minority wanted.  

    Here in Oklahoma the Gorsuch. "Mcgirt " decision was magically undone by Kavanaugh after OK governor Stitt went on fox news and complained about tribes being allowed legal sovereignty. Now how did that happen? How did that case get on docket and decided so quickly and by Kavanaugh who i am sure has never handled any native law cases? Because the system is gamed by Leonard Leo and now he has 1.6 billion to keep screwing the country.

    The only reason Aileen Cannon is federal judge is her age and federalist society membership.

    So i bet it is hard to teach law students to respect the system. We sure don't.

  5. Ever since I first understood – I mean REALLY understood – our US Constitution, I was always getting on people's nerves telling them that every Democratic POTUS needed to populate ALL of the courts with as many liberal-leaning judges as possible. 

    Or at least neutral, open-minded judges. 

    And especially SCOTUS justices. 

    So yes, my idea was the diametric opposite of what the "Red Meanies" – KKKonservative  – are doing (BTW:  There are no such thing as "Blue Meanies.  The Beatles were wrong, because 'Blues' can't be mean!).

    A lot of my liberal friends were not as focused on our courts.  "Unfocused liberals?"  No way!  YEAH way!!!

    So here we are:  At the mercy of our new Authoritarian-loving courts, controlled by KKKonservatives.

    So, no matter what great laws the Democrats might pass, there's a good chance some court will throw a huge monkey-wrench in them.  To slow the laws, if not to stop them.

    And in the meantime, they'll be be "un-stare decisising" any and all existing "liberal" decisions.


  6. The most recent poll has a record 58% disapproving of the USSC. The next term will provide new attacks on civil rights, women's rights, LGBQT rights and they may thow individual voting rights out the window by embracing state legislatures' right to overthrow the popular will of voters. 

    The popularity of the court will not go up, and might even decline a couple more points. But about 40% WANT to be able to fly their freak, whether it's racial bigotry, homophobia, antisemitism, or simple misogamy. A court that allows the states to allow bigotry and the 'rights' of people to act on their hatred as something sacred is their kind of court. 

    Further attacks on rights by the USSC seem likely to happen and I'd predict will deepen the resolve of Democrats and independents who are pro-democracy to immediately add chairs to the Supreme Court bench. In theory, a simple majority in the House and Senate could pass the law (if the Senate changes the rules.) At least two Democrats in the Senate will NOT change the supermajority rule. A simple majority could change the rule but to pass the change would require Dems pick up TWO more seats than they have in a bare majority. Sinema is up for reelection in 2024. I don't think Manchin can be replaced by a Democrat. I don't think the GOP will take the Senate in 2022 or 2024, but a vote on the fillibuster (which must happen before we can enlarge the USSC) will happen before 2025.

  7. It's been all downhill since Bush v. Gore, the most explicitly partisan SC decision ever.

  8. Unfortunately, there are too many stupid Americans who don't know what a democracy is and why they need to fight for it.  It's very sad.  I am 77 and hope to be dead before the end of America comes.


Comments are closed.