No longer legitimate, the Supreme Court is a threat to our liberty
Like old Soviet Courts, this one never surprises us
You do not have to be a lawyer to understand how damaging this Supreme Court is to our liberty. In the hands of its brazen majority, the rule of law, a very good thing despite its unequally application in America, has become rule by law, a mechanism every tyranny uses to enforce its dicta. Recent rulings make clear that the democracy is too important to leave to nine Supreme Court Justices, the majority of whom care less for democratic legitimacy than for factional power.
It did not take very long to destroy a great institution. The tortured logic of the Heller decision in 2008 showed the arguments of the majority to be nothing more than a fig leaf covering ambition of the Court’s majority faction. In Heller, the so-called strict constructionists decided simply to lop off first part of the Second Amendment because it was ideologically inconvenient. “A well-regulated Militia, being necessary to the security of a free State” gave way to an unregulated right to walk around armed. In a stroke, the Court overturned its own precedents and upended American norms. They did this because, let’s be honest, they could: the majority was formed for purpose.
Freeing gun totting Americans to strut their stuff was just a first step. In a legitimate court, the weight of precedent and practice over time is hard to throw out, and then only when the mass of society agrees to move on. Sic Transit Plessy v Ferguson. But when the mass of society has embraced a norm rather than rejected it, the calculus ought to be different. But this is not a legitimate Court.
Heller was a taste of power. Five subsequent decisions make it clear that the Court’s majority faction is now drunk with that power. The Citizens United, Shelby, Brnovich, Rucho, and Merrill decisions show a Court not only careless about legitimacy, and dangerous to our democracy.
The Citizens United decision (2010) unleashed torrents of dark money into our politics. As it did in Heller, the Court tossed the existing body of law into the furnace of their power- this time by ruling that Congress could had overstepped in its efforts to regulate the flow of money in politics. It did not matter that most Americans kno, instinctively that vast amounts of cash pollute our discourse and tip the scales in favor of the rich and powerful. As in Heller, the legal arguments were weak, and the Court was divided. There was no need to set our political house on fire, yet the Court recklessly chose to do so. They opted to give political weapons to the powerful at the expense of the weak, and further eroded faith in our democracy.
As bad as Citizens United was, we now know it was just part of the warm-up act. In relatively short order the Court gutted Voting Rights Act. In the 2013 Shelby decision, the Court nullified Section 5 of the Act. Section 5 required several states with a history of discriminatory voting laws to obtain pre-clearance from the Justice Department before changing their voting laws. Despite clear evidence that states would roll back voting rights if allowed to do so, a once-again divided Court dropped the oversight that had successfully deterred voter suppression efforts. It took about a nanosecond after the Shelby ruling for states to do exactly what the Voting Rights Act was supposed to preclude- unfairly limiting access to the polls in a partisan and often race-based manner.
They followed this with Rucho in 2019. This is the Pontius Pilot ruling (Matthew 27:24), where the Court washes its hands of any obligation to protect voters. Again, a power-hungry majority said that political gerrymandering was simply none of their concern, and that we should fully expect map making to be a political weapon. As Justice Elena Kagan and the other helpless members of the Court’s minority lamented, “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
Not satisfied that they had gone far enough in Shelby by removing the best defense against violations of the Voting Rights Act, the Court further weakened Section 2 of the Act to make it legal to pass discriminatory voting laws. The 2021 Brnovich decision decided, against all precedent and common sense, that what Congress actually intended the law to mean was that it was okay to discriminate, just not too much. Using this new standard, they left in place Arizona laws that clearly disadvantaged Black voters.
And still, it was not enough.
Americans support common sense gun regulation. They support common sense restrictions of money in politics. The Voting Rights Act was so important to America that it became a proud part of our foreign policy during the Cold War when we stood for democracy against communist tyranny. Americans expect to choose their own legislators and feel disenfranchised when legislators choose their voters. No matter. This Court cared about as much for the values of ordinary Americans as it did for precedent.
And here we have it. A small group of Justices, chosen for purpose by the shadowy Federalist Society and its big money donors, see power as an end in itself, and democracy as an inconvenience to be contained. After this rush of split decisions at once anti-democratic, discriminatory, factional, and dismissive both of precedent and societal norms they surprised exactly no one in Merrill.
In this latest example of the Court’s power-lust, the majority faction used its shadow docket to uphold Alabama’s request to vacate a lower court ruling that said its districts were clearly discriminatory. The use of the shadow docket, an expedited process that precludes thorough examinations, was too much for Justice Roberts, who, despite his eagerness to undo the Voting Rights Act, understood this decision to be an affront to the rule of law. A divided Court made sure that any part of the Voting Rights Act that they had not burned down in Brnovich was now gone.
Courts with great legitimacy often surprise the world. Justice has a sword for a reason, it cuts through privilege and protects individual dignity. Courts with no legitimacy never surprise anyone. Was there ever a ruling in the Soviet Union that was not assured in advance? In each of these cases, and at an accelerating pace, the Supreme Court undermined its own legitimacy. Worse still, these rulings are not at the periphery of the democracy, but at its heart- the right to vote.
No one will be surprised when this Court overturns, for the first time in US history, a Constitutional right. The holy grail of Republican court packing, so we have been told, is to erase the idea that a woman had a right to her own body. Abortion advocates will provide many data-informed arguments about what overturning this established law will mean for women’s health. They will argue about the legitimacy of striking away a right that other courts and most Americans find in the Constitution. They will be both mocked and ignored.
Overturning Roe will be the last step towards the complete collapse of confidence in the Court, and it will deeply undermine faith our democracy. Nor is the timing a surprise: the decision will come during a moment when one of the major political parties is attempting to legitimize an anti-democratic takeover of government.
Justice Sonia Sotomayor recently used a virtual appearance at the New York University Law School to issue a warning: "As norms of the nomination process are broken, as more senators, congressional representatives, governors, mayors, local politicians, and the media question the legitimacy of the court the threat is greater and unprecedented than any time in our history."
This warning comes as we await a new U.S. Supreme Court nominee to fill the seat of retiring Justice Stephen Breyer. Unfortunately, no single nominee and no nomination process, however pristine, can restore the legitimacy of the Court.
Justice Sotomayor’s warning is important, but it comes too late. The Republican Party, one of the great political parties in world history, has fallen. It is now just a zealous faction that looks at the world and asks, “What is power for except to rule?” The rest of us understand that democracies exist to constrain just this sort of tyranny.
Americans can no longer rely on the Supreme Court. We must instead acknowledge the terrible fact that it is no longer legitimate and poses a threat to the democracy itself. Its factional supporters would use the idea of an illegitimate government to establish a tyranny. The rest of us need to redouble efforts to restore both the Courts and our politics.
That means winning despite the disadvantageous electoral rules. It means enacting new laws to overturn the terrible decisions of this disgraceful and illegitimate Court. And it means enacting new reforms to strengthen our democratic institutions. We have so little time, and much to do.