Court, Not Beings

By Frank F Islam & Ed Crego, July 7, 2022 (Image credits: Tom de Boor, Association of Mature American Citizens, Ancient Sculpture Gallery et al)

You may not Roe your own boat nor Wade in the water. That is the disenfranchising message the Supreme Court sent to the women of the United States when it handed down its decision in Dobbs v. Jackson Women’s Health Organization (Dobbs) on Friday, June 24 eliminating the constitutional right to an abortion.

You may hide and tote your gun almost anywhere you please. That is the enfranchising message the Supreme Court sent to American citizens in its decision in New York State and Rifle & Pistol Association v Bruen (Bruen) one day earlier on June 23, reversing a New York state law that put strict limits on the carrying and use of handguns.

Those two decisions have evoked considerable commentary and the revocation of the right to an abortion prompted protests nationally. The question of how this will change the legal, social, and political landscape of this country will be answered in the years and decades to come.

There is another important question that should be asked and answered because of these rulings. It is: what do these two decisions say about the Supreme Court itself?

In our opinion, they suggest two things: (1) The Supreme Court today is controlled by a majority who seem to perceive themselves as “Supreme Beings” of the courtroom, letting their personal philosophies dictate rather than exercising judicial objectivity in their decision-making. (2) The Supreme Court is in a critical need of reform to return it closer to the role it was meant to play when the Court was created as the third branch of government by the founding fathers.

Is it fair to characterize the majority on the Supreme Court as “Supreme Beings” and to assert that there is a “critical need” for reform? Let’s examine the facts and see if they support using that label and the argument for reform by looking in order at: the composition of the court and the backgrounds and beliefs of the judges themselves; the rulings in the Dobbs and Bruen cases contextually; and the evolution of the Supreme Court over time.

The Supreme Court Majority

There are five members of the majority in the Supreme Court or six if you include Chief Justice John Roberts. We exclude Roberts because in the past he has tended to be a swing vote and a middle-of-the road player, rather than part of a strictly conservative majority.

The five members of the conservative majority, in order of seniority on the court, are: Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Thomas, Alito, Kavanaugh, and Barrett are Catholic. Gorsuch is Episcopalian but was raised Catholic.

Gorsuch, Kavanaugh and Barrett were all appointed to the court by President Trump. During his campaign for the presidency in 2016 , Trump promised to appoint justices who would overturn Roe v. Wade. These were his candidates for accomplishing that.

During their appointment hearings, Gorsuch, Kavanaugh, and even Barrett, who had a strong anti-abortion record managed to skirt the abortion issue somewhat convincingly. After the Dobbs decision, Bret Stephens, conservative journalist for the New York Times, in his weekly conversation with Gail Collins, his liberal journalist counterpart, observed:

As you know Gail, I supported the nominations of Neil Gorsuch and Kavanaugh — though I didn’t support Amy Coney Barrett’s. I thought they were closer in judicial temperament to Sandra Day O’Connor and Anthony Kennedy, both of whom upheld Roe in the 1992 Casey decision, than to the go-for-broke moral fervor of Justices Thomas or Samuel Alito. Now’s a pretty good time for me to admit that I was wrong and you were right.

In his June 26 New York Times article, Charlie Savage reports that Justice Alito had Roe v. Wade on his personal list for overturning dating back to the middle ‘80’s. Savage notes that Alito advocated an “incremental” approach and that “…he slowly and patiently sought to chip away at abortion rights throughout his career before demolishing them in the majority opinion on Friday.”

Clarence Thomas, in his concurring comments with Alito’s majority opinion on Dobbs, took things much further declaring “…in future cases, we should reconsider all of this court’s substantive due process precedents, include Griswold, Lawrence and Obergefell.” With that declaration, Thomas recommends putting the right to contraception (Griswold), consensual choices in the bedroom (Lawrence), and same-sex marriage (Obergefell) on the Supreme Court chopping block.

Is it any wonder why Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, in their dissent with the majority opinion, state that the Dobbs decision “undermines the court’s legitimacy.” Sadly, this undermining of the court’s legitimacy is not something isolated to this single case, nor of recent origin or accidental.

Ishaan Tharoor highlights this in his June 27 Washington Post column, noting:

The court’s weaponization by the American right-wing is the end goal of decades of concerted effort and campaigning. “The conservative movement’s control of the Supreme Court, its success in skewing the electoral process through voting restrictions and gerrymandering, and the Democrats’ likely collapse in the coming midterms have bolstered Republicans’ confidence that they can drastically reshape American society on their terms without losing power,” wrote the Atlantic’s Adam Serwer. It is clear now, Serwer added, that “the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country.”

In their blog for the Brookings Institution, Norm Eisen and Colby Galliher assert that because of its trajectory and orientation, “The Court should be known from here on out as the Trump Court.” Eisen and Galliher propose this because the majority in the court engage in Trumpery, stating that “Perhaps the single most defining characteristic of Trumpery is its disdain for the rule of law.” They proceed to cite the failure to adhere to stare decisis in the Alito opinion in the Dobbs case as an example of this disdain.

No matter whether they are called conservatives, practitioners of trumpery, Supreme Beings, “ideologues,” or “extremists,” as others have labeled them, the current majority on the court is definitely espousing political views and personal perspectives that have little to do with precedent or societal norms. An analysis of Alito’s decision for the majority in Dobbs and Thomas’ decision for the majority in Bruen demonstrates the accuracy of this assessment.

The Dobbs and Bruen Decisions

Justice Alito proclaimed that the Supreme Court’s decision in Roe v. Wade was “egregiously wrong” without providing any real compelling evidence to support his verdict. As Linda Greenhouse, reporter for the New York Times on the Supreme Court from 1978 to 2008, explains in her excellent guest essay, “Five of the seven justices in the Roe majority…. were appointed by Republicans. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey…came from five Republican appointed justices.” Those decisions were made by neutral Republican jurists rather than partisan Republican activists.

Greenhouse also highlights the fact that Chief Justice Roberts objected to the majority opinion, stating that that it did not adhere closely to the principles of judicial restraint and the doctrine of stare decisis. And that ‘its dramatic and consequential ruling is unnecessary to decide the case before us.”

Alito justified ignoring Roberts’ objections by writing “The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this court and the country — to face up to the real issue without further delay.”

In the opening sentence of her article, Greenhouse opines, “They did it because they could.” We agree with her. And, we would add, they did it because they didn’t care. They didn’t care that their decision in Dobbs was “egregiously wrong” — which it was. Or, whether it put the country and tens of millions of women across it into “turmoil” — which it has.

They could and they did in Dobbs because that’s what the right wing, who they represent, wants. The majority was legislating from the bench, not acting as justices.

They did the same thing in Justice Thomas’ opinion written for the majority in Bruen. The New York Times does a good job of dissecting that opinion, writing in an editorial:

Relying on a highly selective reading of history, Justice Clarence Thomas wrote in his majority opinion that those gun restrictions violate the court’s new interpretation of the Second Amendment. (It was only in 2008, with its decision in District of Columbia v. Heller, that conservatives on the court divined an individual right to bear arms hidden somewhere in the 27 words of the Second Amendment).

Libertarian conservative commentator George Will joins with the Times in critiquing Thomas’ Bruen opinion.

Will begins his analysis generously by observing, “Thomas in his 63-page opinion, was characteristically meticulous and exhaustive in marshalling evidence of an enduring American tradition of permitting public carry of firearms by people with ‘ordinary’ self-defense needs.” He proceeds to draw back on his generosity by stating that former federal appellate judge J. Michael Luttig points out, in an amicus brief supporting New York, that there is an “American tradition even older of striking ‘a delicate balance between the Second Amendment’s twin concerns for self-defense and public safety.”’ Will concludes critically, commenting, “On Thursday, the court effectively removed from public debate the essentially legislative choice of balancing the competing values of self-defense and public safety.”

To summarize, Alito in his Dobbs opinion which took away a constitutional right and gave it back to the states, and Thomas, in his Bruen opinion, which usurped a state’s right with a constitutional interpretation, were legislating.

That’s to be expected because they are kindred spirits with similar and complementary agendas. As Linda Greenhouse notes, “…Justices Thomas and Alito spent years inviting the gun lobby to bring cases affording an opportunity to expand on the second Amendment analysis of the 2008 Heller decision…Bruen, of course did not overturn an old right but expanded on a new one.”

In other words, the majority opinion in Bruen was “original.’ As was the decision in Heller. This is ironic because most conservative justices purport to be originalists who attempt to “give the constitutional text the original meaning it would have had at the time that it became law.”

As we highlighted in a blog titled Second Amendment Rights. Second Amendment Wrongs, “…the historical perspective shows clearly and convincingly that the Second Amendment was established for one reason and one reason only, and this was to protect an individual’s right to a weapon in order to serve as part of a state’s militia. There is absolutely no guarantee of a right to a gun outside of this context.”

There is no question in 2022 that we are standing in precarious times judicially and socially. The Supreme Court is out of synch not only with the Constitution and precedent, but also with the majority of the American public.

A Gallup poll in June of this year revealed that only 25% of the American public have confidence in the Supreme Court, down from 36% in 2021. A Pew research poll released in June showed that 61% of the American public believe that abortion should be “legal in most or all cases.” Vox reports various recent polls show that a majority of Americans favor stricter gun laws. And within hours of the Supreme Court loosening gun restrictions, the United States Congress passed bipartisan legislation providing some gun restrictions, which President Biden signed into law on June 25.

The Need for Reform of the Supreme Court

The composition of the Court and its recent rulings provide substantial evidence that there is a need to reform the Supreme Court. That need is not new, but because of the current highly partisan and politicized nature of the Court it is more urgent than it has been in the past.

In 2009, James MacGregor Burns, Pulitzer Prize-winning historian and political scientist, provided a brilliant and prescient indictment of the Supreme Court in his book Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. In it, he argues “…as the ultimate and unappealable arbiters of the Constitution, the justices have become more than referees in constitutional disputes that the framers intended. They have gone beyond interpreting the rules — they have come to create them.”

One decade later in July of 2019, we aligned with Burns and put forward our own argument on the need to reform the Court shortly after it handed down a 5–4 ruling in Rucho v. Common Cause, which harmed our American democracy by permitting virtually unrestricted gerrymandering at the state level. At that time, we also cited the Court’s decision in Citizens United, which effectively elevated “free speech” of the corporation above that of the citizen, as another example of judicial “creativity.”

Put bluntly, as we said back then, the Supreme Court has become too powerful. It is accountable to no one. Moreover, given the breakdown of the governance system on the executive and legislative sides in the United States over the past decade or so and the virtual standstill on many issues, power is ceded to the Court.

The Supreme Court is not a representative body. It is not a democratic body. But it is the body that may have the ultimate and final word on many of the most critical issues of our times.

We reiterated the need for reform of the Supreme Court in a blog published in October 2020 after Amy Coney Barrett was confirmed to serve on the Court. At that time, we observed that the court was being “packed” and turned “into a partisan arena rather than a forum for hearing and resolving matters in a neutral manner.”

That’s the bad news. The good news is that quality work has been done to examine the pros and cons of Supreme Court reform.

In April 2021 President Joe Biden issued an executive order establishing the Presidential Commission of the United States, a bipartisan group of experts to examine the issues related to reform of the Court. The Commission submitted its analysis in a final report, which included arguments for and against changes but no definitive recommendations, in December 2021.

The major changes that were analyzed included: expanding the Court beyond nine justices; establishing term limits; and creating a “code of conduct.” According to Ann E. Marimow of the Washington Postthe final report “describes public support for imposing term limits but ‘profound disagreement’ about adding justices.” On May 16, Democracy Docket commented that the Commission did support one direct recommendation: “to create an advisory code of conduct.” The Docket also briefly described several bills in Congress focused on reforms outlined in the Commission’s report.

That’s the bad news and the good news. But, in terms of actual progress in implementing any changes or reforms, there is no news. This is not healthy for our nation.

As we said at the end of our 2019 blog,

We believe in a strong, independent and impartial judiciary. We need that for the sake of, and to preserve, American democracy.

This is why we need new rules of engagement for the Supreme Court. We need to reform the Supreme Court in a manner that ensures that it has the balance and provides the balance of powers envisioned by the founders.

If it becomes merely an extension of a political party or an ideology, it puts the future of this democracy at risk. A democracy at risk cannot long survive.

Today the “Coming Crisis” which James MacGregor Burns envisioned is upon us. The nation is knee deep in the consequences of the packing and politicization of the Court. It is in a morass that is neither a pretty nor safe place to be.

For a variety of reasons, our democracy is at much greater risk than it was three years ago. We desperately need breaking news that the Supreme Court can be reformed to help reduce that risk and make our democracy fairer and better for all, rather than being used as a tool to dismantle it in order to benefit special interests and individuals.