I was wrong.
No surprise to anyone who knows me, of course, but I need to say it out loud because I was wrong about something very important to the future of our country.
Several months ago I argued that progressives should not question the integrity of the conservative Supreme Court justices no matter how wrong we may believe their decisions happen to be.
Instead, I suggested, we should give them the benefit of the doubt and trust that they are trying to make the best decisions they can. Two recent decisions have made me realize how wrong I was about that.
In both the Texas abortion case from a few weeks ago and this week’s Alabama redistricting decision, members of the conservative majority have shown the degree to which raw politics are shaping their decisions.
Both decisions were “shadow docket” rulings, which means the Court issued an emergency order because it believed that without an immediate decision individuals would suffer “irreparable harm.”
Instead of preventing “irreparable harm,” however, in these two cases the Court itself caused it.
It allowed the Texas law that bans abortion after six weeks to go into effect until it is fully adjudicated. By lifting the “stay” lower courts placed on the law, the justices did what no one expected them to do, which was to let a law stand most legal scholars and even three of them indicated was likely to be ruled unconstitutional.
They made a similar unprecedented ruling in regard to the Alabama redistricting map drawn by Republican legislators that packed black voters into a single congressional district rather two as the numbers indicated they should have. The Appeals Court ruled the new map violated the 1965 Voting Rights Act.
The Court’s overruling of the Appeals Court immediately brought to mind the 1854 Dred Scott decision when the Supreme Court ruled that the 5th Amendment protected the right of whites to own slaves.
Even Chief Justice Roberts criticized the conservative majority for their actions.
Harvard law professor Lawrence Tribe’s criticism went further: “This is a new low even for this lawless Court. Not even Chief Justice Roberts, author of the infamous Shelby County decision, could bring himself to join the radical right majority in draining the Voting Rights Act of all meaning and leaving it a hollow shell.”
Exacerbating what the conservative justices did was the fact that both decisions were arbitrary because they were unnecessary. In fact, they seemed to have gone out of their way to contradict the normal process followed by the Court.
The question, then, is why. Why did they do what they did?
Sadly, even tragically for the country, the most logical answer is raw politics, as raw as it gets.
They thumbed their noses at judicial precedent, judicial restraint, and the Constitution, sending the unambiguous message that the Court’s conservative majority is quite willing to impose its political will on the nation.
It is no secret, for example, that all the conservative justices oppose Roe v. Wade and found a way to limit its effectiveness. Now we know that five out of the six have no qualms about using their power to support Republican efforts to limit the power of the black vote.
I cannot think of anything that reflects a betrayal of their oath of office more than these two decisions, tarnishing, if not destroying, the reputation of the Supreme Court at a time when the nation needs to be reassured that our democracy is strong.
Defenders of this Court who say these decisions are based on the so-called “doctrine of originalism” that guides conservatives on the Court are wrong. “Originalism,” so far as it is a real thing, is unrelated to their actions. The constitutionality of neither of these cases was being decided. Instead, the decision they faced was whether or not to prevent harm before they were ultimately adjudicated.
In both instances the conservatives justices chose harm over caution.
So here we are as a nation with the conservative majority of the highest court in the land openly declaring that when given the opportunity they will not hesitate to re-write the nations laws to suit their political views.
If there was ever a moment when our democracy in jeopardy, this is it.
That it has come at the hands of the Supreme Court is something I didn’t believe was possible – until the Court itself prove me wrong.
It is shocking that the US Supreme Court has become so blatantly political. We of a certain age grew up in a time when SCotUS was viewed as non partisan, trustworthy. We relied on it to right the ship. That went out the window when McConnell denied President Obama the Garland nomination. It’s been a downhill slide ever since.
Which is why he has done as much damage to our democracy as Trump has.
Jan,
You have said this well, explaining the “what” and “why” of this court’s abandonment of the Constitution and bipartisanship. Justice Kavanaugh is openly partisan in his far-right views, and Amy Cody Barrett doesn’t know her ass from her elbow! Both were Trump nominees, so I have to disagree with you that tight-ass McConnell has done more damage to our democracy!!
The future of Roe v Wade and voting rights for all seems dim right now. Thank you my good friend for “speaking truth to power”!! And safe travels tomorrow as you return to Apple Valley where your ongoing wisdom will emanate!!
Bill Blackwell
I guess we can say all three have done and are doing immense damage to our democracy, Bill. I just cannot figure out why voters who care about the country support them.
Correction: She is Amy CONEY Barrett
Jan, I totally agree with this!!
Thank you, Anne. Good to hear from you.
Well said Jan. I just can’t understand why the Supreme Court continues to allow gerrymandering. The excuse that it’s too close to the election is simply a cop out and a way to weaken the effect of the black vote. This Supreme Court is going to set the country back 100 years.
Your last sentence gives a whole new meaning to “originalism,” doesn’t it, Wilbur?
it is past time for court reform, term limits, and any decision regarding Constitutional rights must be 9/0 decision. I am for more justices, but that is not going to happen
More justices may be our only hope, Guy.
Jan, this is such an outstanding post. You should submit this as an editorial to the newspapers anywhere that will print it. The case you make is so well argued.
Thank you, Jane. I appreciate your suggestion, by my experience with the newspaper does not encourage me to send it. I have had a few things published, always very short. They seem more interested in publishing outrageous articles and letters than reasoned ones. The news these days wants to sensationalize more than inform.
It’s “Dred Scott decision” not Drew Scott. And on all those other things . . . Democrats would NEVER consider doing any of them!
Thank you for catching the typo. As for what Democrats would do or never do, we try to teach our children to understand that their behavior is never justified by what anyone else does or doesn’t do. I think it’s time for Republicans to be that mature and stop justifying bad behavior with the excuse that someone else – a Democrat – would do the same thing. Justices are supposed to follow the law, not their political convictions. That is true for Republicans and Democrats alike.
Jan,
Like you, I’ve always assumed that SC Justices followed the law as they understand it, leaving politics out of their considerations. How wrong, I’ve been. The recently appointed Justices show themselves to be political hacks. And I’m not being hyperbolic. Also, like you, I fear this court majority is a strong threat to our democratic tradition. It boggles my mind to try to understand how we have come to this point. All the more reason to work hard to increase more sensible voting in coming elections. It is the only way stop this irrationality.
Thanks for this focussed, detailed piece.
Cheerz!
Gene
Gene, I can tell you and I share the profound puzzlement over where we are as a nation. I cannot imagine how the justice believe they are serving the country or upholding the Constitution. Their comments to justify themselves are so pathetic they do not rise to an adult level. You’re right. How we got here is the biggest enigma of all. Thanks.