We have a full-blown Constitutional Crisis- it's just not the one you think...
We have an Article III crisis: the Supreme Court is no longer legitimate
On Thursday, we saw the most damaging of the January 6th hearings to date. That same day, the Supreme Court ruled that states do not have the right to regulate guns. The next day, in Dobbs, the Court opined that states do have the right to regulate women.1 The Dobbs ruling overturned two consequential cases not because the law changed, but because the Supreme Court did.
Their decision, seen in the context of other recent events makes clear that not only abortion rights, but the rule of law itself is in tatters.
Back in 1973, Roe established a balance between a woman’s right to control her own body, and the rights of a potential human in her uterus. The Justices a half century ago knew the topic was contentious, but the balance they sought was legal as opposed to political. Roe never said states could not regulate abortion. The Court never said abortion was at all times legal. Instead, it said that before a fetus was viable outside the womb, the state could not impose its will on pregnant women. A generation later, in 1992, the Casey decision not only affirmed Roe, but spoke at great length about when and how Supreme Court precedent could be overturned. By now ignoring the principles of law that guide overturning decisions like Roe, the Court loses its right to tell us what law the law is.
The consequences of all this are enormous.
Justice Thomas, more honest, if more misguided than the others, was clear - Friday’s decision paves the way to ban contraception, gay marriage, and other rights Americans have bled for.
As the opinion was released, I watched the news with my wife, my two daughters, and my mother-in-law. Their mix of outrage, terror, fury, and determination united three generations. I have no doubt a vast mobilization is coming.
Still, we cannot take effective action if we look at this horrid opinion in isolation. What is at stake is even bigger than this decision. As of now, the foundations of every freedom are in jeopardy: the rule of law, the legitimacy of the judiciary, the principle that government itself derives its legitimacy from the consent of the governed.
To see that we cannot consider this case in isolation, consider how recent events are related.
Recall that Donald Trump was first impeached by the House for abuse of power when he destroyed the independence and integrity of the Department of State. He sidelined the professionals in the Department and tasked Rudy Giuliani to lead a secret foreign policy. The end of that secret foreign policy was to shake down President Vladimir Zelensky in Ukraine by holding up Congressionally approved arms sales until Zelensky claimed he was investigating Hunter Biden. At the time they said, “it does not matter if you are really investigating him, just say you are.” The Republicans in the Senate voted against impeachment. One, Senator Collins of Maine said she thought Mr. Trump had learned his lesson.
He did not, and the damage is lasting. The Department of State was undermined to such an extent that the Biden Administration now confronts challenges from Ukraine to North Korea without all the tools it should have.
The second impeachment, and the work of the Select Committee examining January 6th, highlight Donald Trump’s effort to erode the independence and integrity of the Justice Department. The evidence show he fired leaders who would not do his bidding. He pressured the Department to issue a finding that elections were tainted even though he knew that was a lie.
“Just say you investigating and let me, and the House Republicans take it from there,” he said. Sound familiar? The Department’s leadership resisted, but the damage is done.
We do not know how many traitors like Jeffrey Clark and Ken Klokowski - John Eastman’s partners in the effort to create a legal fig leaf to hide a stollen election - now work in the Department. We do know that special prosecutor John Durham, the man Bill Barr tasked with proving that the Obama Administration spied on Donald Trump, is still on the job despite a unanimous jury verdict that his one case was nonsense. We also know the politicization of the Justice Department serves a purpose. It means that when the coup plotters are brought to justice, many in America will doubt its legitimacy.
Corrupting the State and Justice Departments was, as you must now suspect, a path to extending his personal rule. But Mr. Trump and his allies corrupt everything they touch. They do this purposefully. If you can trust nothing, then they cannot be held accountable for anything.
Which, of course, gets us to the illegitimate Supreme Court. Mitch McConnel and Donald Trump engaged in court packing without precedent in our modern history. Refusing to vote on Barack Obama’s nominee because there was an election coming, then rushing to confirm Donald Trump’s nominee because an election was coming changed the makeup of the court. The new personnel have been quick to eviscerate the Voting Rights Act, to give unprecedented weight to America’s gun culture, and to undermine women’s rights and the rule of law itself. American law had not changed. Science had not changed. What changed was the makeup of a now illegitimate Court.
Even Justices now on the Court acknowledge that the institution lacks legitimacy. Here's what Justices Breyer and Sotomayor said in their Dobbs dissent:
Now a new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey… It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.
Casey itself made the last point in explaining why it would not overrule Roe—though some members of its majority might not have joined Roe in the first instance. Just as we did here, Casey explained the importance of stare decisis… the absence of any “changed circumstances” (or other reason) justifying the reversal of precedent. “[T]he Court,” Casey explained, “could not pretend” that overruling Roe had any “justification beyond a present doctrinal disposition to come out differently from the Court of 1973.” And to overrule for that reason? Quoting Justice Stewart… explained that to do so—to reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”— would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the Court would pay a “terrible price.”
In fact, all of America is paying a terrible price - not just the women who have now been told their bodies belong to the state during their pregnancies. All Americans benefit from the rule of law. All of us need a legitimate Supreme Court.
Recall that this Court allowed Texas’s cruel bounty law to stay in place while Roe was still the law of the land. Effectively, the nation’s highest court said the rule of law does not really matter, only power does. And so, we have our constitutional crisis - just not the one everyone was expecting. It is an Article III crisis - an illegitimate court.
Some will argue that states like Illinois should pass and enforce gun restrictions arguing that the Court’s opinions don’t matter. That’s what Texas did with abortion. It would save countless lives. And it is arguably justified by the Texas precedent and the illegitimacy of the Court itself.
Tempting, but no. That way lies a harsh world where only power matters. Let us instead fight to restore the foundations of our liberty.
Reform the Court. Break the filibuster and add additional seats now. Yes, the GOP will cry about court packing, but their crocodile tears are filled with lies. They packed the court. They eroded its legitimacy, just as they did to the Departments of State and Justice. They caused this constitutional crisis.
One more thing. The outrage to women is likely to push groups to make this a single-issue fight. It is not. We are all in this together. It is a fight against the minority of autocrats who seek to rule us without our consent. Whether it is bodily autonomy, or environmental sustainability or economic justice or public safety or fill-in-the-blank… whether you are a progressive or a conservative like Adam Kinsinger, we are united because we all lose when an empowered minority is casual about the rule of law and imposes its will without the consent of the governed. There is an election coming: Let us rid our democracy of the despicable liars, these poisoners of everything they touch.
I am using “women” to reflect the current common parlance and language in the recent opinion. I recognize that our current language is not fully inclusive.