Tyrants in robes: SCOTUS's right-wing majority isn't even bothering with trying to persuade you
Also: Fox & Friends' reaction to Boris Johnson's resignation is an instant classic.
Thanks for checking out this edition of Public Notice. After a thoughtful piece about the tyranny of SCOTUS from Noah Berlatsky, scroll down to the bottom for a couple lighter notes on recent Fox News segments from me. Cheers — Aaron
Last month the Supreme Court overturned Roe, ending a constitutional right to abortion. Many worried that the right to marriage equality, contraception, and interracial marriage could be next.
Others — like David Leonhardt at the New York Times — insisted that these rights were not in danger. After all, Leonhardt argued, Chief Justice John Roberts did not sign on to the Dobbs v. Jackson Women’s Health Organization 5-4 decision. More, Brett Kavanaugh wrote a concurrence specifically insisting that the right to marriage equality and contraception were safe. “Unless Kavanaugh changes his mind — or Roberts decides to overturn those precedents — there is no majority to do so,” Leonhardt said. All is well!
But all is not well, and Leonhardt’s sanguine assessment is, unfortunately, not very convincing. Dobbs is terrifying because it obliterates the right of women and pregnant people to bodily autonomy; it hands their health and lives to the whims of the state without due process or pity. But it’s also terrifying because it signals the court has no restraint, either in precedent or conscience.
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Dobbs is a proclamation of absolute judicial dictatorship. The judges may choose not to take certain rights away quite yet. But if rights exist solely at the whim of five robed tyrants, then no one really has any rights at all. We don’t live in a democracy; we live in a judgeocracy. Our rights, our votes, our marriages, and our very lives can be taken from us on a whim.
No doubt Leonhardt and his loyal readers, including President Joe Biden, would view this characterization as alarmist. Judges, after all, don’t write law; they simply interpret it. They have to provide reasons for their decisions based on precedent. They can’t just rule by fiat or dictat. In theory.
In practice, this court has demonstrated that they see little or no limitation on the partisan exercise of power. There are innumerable examples of flagrant, vaunting intellectual dishonesty from the recent raft of decisions. But to highlight just a few:
— Neil Gorsuch knowingly and shamelessly lied in his majority decision for Kennedy v. Bremerton. Five of his colleagues signed onto that lie. The case was about whether a football coach could lead his team in Christian prayer.
Vox correspondent Ian Millhiser explains that Gorsuch said that the coach engaged in “private” and “quiet” prayer. But there is photographic evidence of Coach Kennedy praying surrounded by players. In other words, the prayer was effectively a team activity, creating a burden on anyone who didn’t want to participate. An atheist student said he felt compelled to participate. Justice Sonia Sotomayor included the image in her dissent. You can see it below.
Gorsuch claims the picture doesn’t count since the players crowding around him were from the opposing team — but even if they are (which seems doubtful) the prayer is still not private or quiet.
Gorsuch wanted to decide in favor of Kennedy, and deliberately twisted the facts to fit his preferred outcome. The decision is Christian nationalist propaganda with the force of law. Six dishonest theocratic justices ignored precedent, logic, and the facts of the case to invalidate the First Amendment and rule that public school officials and teachers can force non-Christians to pray.
— In NYSRPA v. Bruen, Clarence Thomas in the majority decision virtually boasted that the court didn’t need to defer to expert knowledge or empirical research. The case was a challenge to a New York state law restricting the carrying of concealed pistols. The court ruled that carrying firearms was a constitutional right, making it much more difficult for localities to regulate guns.
Thomas in his opinion wrote that “Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislatures.” But he argued that they shouldn’t. Instead, he insisted, the court should choose a “reliance on history.”
Thomas admits that history “can sometimes be difficult and nuanced.” But, he suggests, judges can figure it out for themselves anyway without reliance on pointy-headed experts.
And sure enough, his decision engages in shockingly shoddy historical tomfoolery, ignoring easily accessible evidence of gun regulation during Reconstruction. Thomas elevates history over empiricism not for any rigorous intellectual reason, but simply because he personally feels more comfortable writing fantasy history than fantasy statistics in his opinions.
— The Republican majority on the court used the shadow docket to reinstate a vicious racial gerrymander in Louisiana. A district court overturned the gerrymander, and a conservative appeals court upheld the lower court decision. The conservatives on the court reinstated the gerrymander with no explanation or reason. They promised to provide a rationale later when they rule on an Alabama elections case.
That means that the Louisiana gerrymander — which creates only one Black majority House seat in all of Louisiana — will be in place for the 2022 elections. Democrats will have even more difficulty retaining the House, which means they will not be able to pass legislation protecting voting, which means that the Republican Supreme Court can gut voting right unimpeded, which means that Republicans will have a greater advantage in future elections, which means that Republicans will be able to choose future Supreme Court justices, who can gut voting rights, which will give Republicans an advantage. And so forth.
SCOTUS’s right-wing majority, without providing any rationale, gave their own party a partisan advantage, ensuring their continuance in power. You can call that many things. But it’s not democracy.
It doesn’t have to be like this, but it will be hard to change the status quo
If one branch of government seizes too much power or behaves irresponsibly, the others are supposed to check it. And Congress and the president could take some steps to rein in the court.
For instance, the House with a majority vote could impeach judges like Clarence Thomas who are involved in flagrant conflicts of interest involving possibly treasonous behavior. But removal would require a two-thirds vote in the Senate, so that isn’t happening anytime soon.
An easier path would be for Congress to expand the court, allowing the president to appoint enough justices to override the rogue conservative majority. Under the current deadlocked Senate, that would require Senators Joe Manchin and Kyrsten Sinema to agree to reform the filibuster. Since they don’t seem open to that, two more Democratic senators are needed. There are elections coming up in November, so hope isn’t entirely lost.
Ultimately, however, the problem is that the same forces that have created this Supreme Court work to paralyze Congress.
The Republican court majority is dependent on an electoral system that is innately undemocratic. Republicans have won the presidential popular vote just once since 1988. Yet they have appointed two-thirds of the court, because the electoral college keeps giving them power.
The disproportionate power of rural white voters is even greater in the Senate, which confirms judges. That’s what allowed then-Senate Majority leader Mitch McConnell to prevent Barack Obama from filling Anton Scalia’s seat when he died. It’s also why, despite popular vote victories for Democrats, conservative senators unwilling to confront white supremacy hold swing votes in the chamber.
The conservative Supreme Court was created by a system that empowers a white minority to rule over everyone else. Now that the court is installed, it has demonstrated that it is not accountable to truth, to expertise, or reason. Nor does it feel any accountability to the public, which overwhelmingly opposes the Dobbs decision.
The Founders argued that taxation without representation was tyranny. They believed that if you did not have a say in your own governance, you had no protection and no rights. They were aware of the horrific consequences of tyranny because many of them enslaved people themselves; they feared being subject to the kind of absolute power they exercised.
The US Constitution, especially with the Reconstruction amendments, was meant to ensure that people in the United States had a voice in who ruled them. The government is supposed to be accountable. If it engages in abuses, its subjects can find redress at the ballot box or in the courts. In theory.
But at the moment the court itself is the tyrannical power. Its members are insulated from removal by ballot, and it is busily gutting voting rights to ensure that its reactionary philosophy is entrenched forever.
President Joe Biden has reportedly been concerned that a vigorous effort to protect abortion rights would “undermine public trust” in the Supreme Court. But the court has made it clear that it will use its public trust and its power to crush dissent and democracy as long as it is allowed to do so.
This court has contempt for democracy, for human rights, for reason, for precedent, and for the Constitution it claims to serve. It’s hard to know which particular right it will explicitly strike down next. But it’s already made it clear that no rights are sacrosanct. Until and unless we take steps to reign in this rogue and tyrannical court, the American experiment in democracy isn’t in danger. It’s effectively dead.
The amazing obliviousness of Fox & Friends
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