The Supreme Court has pushed America to the brink.
The Court granted itself the very power and authority it is now using to stop the Government from keeping its citizens alive based on a promise of credibility. But its credibility is now in tatters.
Prescription 1: Americans who find themselves more deeply troubled than usual at recent rulings on reproductive health and guns by the U.S. Supreme Court, and by our Government’s disregard of its basic responsibility to act in the interest of the safety and well-being of its citizens, must prepare to fix a Constitution the Supreme Court has twisted beyond recognition.
It is universally accepted that a basic tenet of government in civilized society is that, in exchange for the citizenry consenting to the government’s authority, citizens are guaranteed some degree of safety, protection, and defense against harm or death. Yet since the beginning of June, the Supreme Court of the United States has twice altered the law of this Nation in ways that will directly lead to the deaths of scores of American citizens.
In a ruling that crossed out five decades of its own case law, five justices on the Court—three of whom have been appointed for less than five years—held that the Constitution does not, in fact, guarantee a person’s right to health care decisions regarding reproduction, and that previous decisions by the Court which held precisely the opposite were all, simply, wrong. Shortly before that, the same Court ruled States cannot pass laws regulating guns unless they are “consistent with this Nation’s historical tradition,” invalidating dozens of laws across the country that ban assault weapons or the open carry of firearms in certain places. The pair of decisions will, as a certainty, cause the deaths of American citizens—and pose an existential threat to the continued acceptance of the legitimacy of American government by its own citizenry.
The latter threat manifests in two ways. First, the decision on abortion is a breach of the political contract the Court has largely abided by for decades. It is a violation of its own core doctrines, and evidence that the decision is politically motivated calls into question the Court’s legitimacy. These flaws will lead to a dramatic increase in calls to fundamentally alter the structure of the judiciary or our government—further exacerbating the country’s already-breathtaking political divide. Second, the decisions violate the fundamental notion that any government’s primary concern should be keeping more of its citizens alive than dead. This may seem like an obvious concern, but such considerations don’t appear to matter to the current Supreme Court. Instead, a small group of the Country’s most powerful judges appointed for life now spend more time worrying whether their own reasoning and writings adhere to “Originalist” academic theory than whether their conclusions are consistent with protecting the general tenets of life and liberty. It is true that the words “life, liberty, and the pursuit of happiness” appear in the Declaration of Independence, not the Constitution. But the Founders declared* these rights to be unalienable—meaning they cannot be ceded or transferred away. While judges and justices owe their fidelity to the law and the Constitution, they dishonor such fidelity when their own hubris and personal viewpoints on constitutional theory create a culture of ectopic pregnancies and mass killings. “Let them eat cake,” the Court’s Originalists say, so that the rightwing justices may continue an academic exercise of formalizing the theories of Antonin Scalia into the entirety of American constitutional law.
Except here, “eat cake” means “die of a blood infection due to a miscarriage that cannot be treated because the Supreme Court says you have no right to certain medical treatment.” Or it means “be slaughtered under a tiny desk in a kindergarten classroom because the Supreme Court values archaic texts more than the lives of citizens.” A Court that does not care whether you live or die, but only whether its views are sufficiently “Originalist,” is not a Court of prudence or wisdom or governance at all, but instead just an offshoot of a political organization. And when any branch of government does not concern itself with the safety and health of its citizens, it is simply not a sustainable form of government. But where do we go from there?
The Supreme Court breaks its word — and breaches its social contract.
When a branch of government gives itself power by borrowing on its own credibility, it is a debt that will never be fully paid. The entire authority of our Supreme Court is based on such a debt. In 1803, before anyone thought the Supreme Court would be a powerful arbiter in American governance, the Court published a decision essentially asking us to let it be the decider of which laws are Constitutional or not. (In truth, the Court kind of told us that this should be its role, but the then-justices knew full well the other branches could simply disregard its opinion, so to some extent, it was an ask in-all-but-name).
In exchange for this newfound degree of power, the Court promised not to be a political actor (“Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”) and promised us consistency (see: the entire doctrine of stare decisis, which developed in the Courts by the time the U.S. was only twenty years old). As a result of these promises, the other branches of Government and the People accepted the Supreme Court as the final authority on interpreting the Constitution.
Our acceptance of the Court’s authority was bought by the Court using a loan of credibility that, if defaulted upon, would mean the breach and void of its 1803 contract with us. No doubt the Court has, at times, teetered on the edge of violating the bargain. Many of its decisions throughout history have been violently wrong, openly racist, brazenly corrupt. But many of its worst decisions could at least lay arguable claim to be examples of judicial restraint, or consistent with stare decisis. Thus, even some of the most terrible decisions remained palatable to the People in part because the Court was keeping its end of the bargain. Still, there have also been times where the Court violated stare decisis principles: between 1942-1992, it voided 130 prior cases. However, many of these cases were inconsequential, clearly wrong, or not relied upon anymore by lawyers and the People alike. While the Court has had missteps, they were either largely of no consequence, or close enough to the original bargain that Americans continued to accept its legitimacy.
But on the last Friday in June 2022, the Supreme Court crossed the line. Its decision in Dobbs is no example of judicial restraint. It is rife with inconsistency with the Court’s past decisions. Never before has the Court overruled a civil right that the Court itself created, that far more Supreme Court Justices have acknowledged as legitimate as opposed to those who have not, and that—as recently as 2016 and 2020—the Court upheld as guaranteed by the Constitution.
Nor is it (at all) consistent with precedent. Since 1970, the Supreme Court has told us:
The Constitution “guarantees a right to privacy,” and that prohibits the government from telling you that you can’t use contraception. (1971).
The Constitution’s right to privacy which covers married couples’ use of contraception extends to single people, too. (1972).
The Constitution’s right to privacy covers a woman’s decision to have or not have an abortion. (1973).
The Government cannot put so many restrictions on these rights so as to make them inaccessible. (1973).
The Government cannot give parents veto power over a minor’s abortion. (1979).
The Government cannot impose 24-hour waiting periods on abortion. (1983).
The Government cannot mandate that doctors use techniques that maximize a fetus’s chance of survival. (1986).
The Court declined an invitation from the Bush Administration’s DOJ to overturn Roe. (1989).
Minors can get court authorization to get abortion if parents will not sign off. (1990).
The essential holding of Roe must be affirmed. “Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.” (1992).
A Nebraska ban on second trimester abortions put an undue burden on the woman seeking the abortion. (2000).
Laws regulating abortion without exceptions for the health of the mother are invalid. (2006).
The Court held that a law requiring doctors who work at abortion clinics hold hospital-admission privileges was an unconstitutional violation of a patient’s right to an abortion. (2016).
The Court reiterated the same position: no hospital-admission privileges can be required of abortion clinics. Justice Roberts, who voted to uphold such a law in the 2016 case, changed his vote here based on stare decisis principles: “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents.” (2020).
But in 2022, almost 50 years after Roe and just two years after the Court reaffirmed that abortion is a constitutionally protected right, this Supreme Court (including three Justices appointed by a single, recent, one-term President) now wields its fragile authority to say that not only was Roe wrong, but so were the repeated decisions between 1973-2020 which further affirmed a woman’s right to abortion. Dobbs is totally inconsistent with both longstanding and recent Supreme Court precedent. Compound that with the fact that three newly-appointed Justices, appointed by the same politician, all voted to reverse decades of precedent, and suddenly Dobbs is begotten with the stench of politics, not law. This is the politics the court swore it would not embrace, a decision that is near-impossible to defend and deeply unpopular with the American citizenry. The stench will be difficult (if not impossible) for this Court to rinse off.
So Dobbs is not consistent with past decisions, does not show judicial restraint, and reeks of politics—all strong evidence the Supreme Court has violated the agreement it struck in 1803. The Court’s credibility is flowing from its walls like a burst oil well under the Gulf of Mexico, and, as a result, there is at least an argument that the American public will view the decision in Dobbs as illegitimate. But what exactly makes an act of government illegitimate?
Scholars might say that any governmental act is legitimate if the actor has the legal authority to undertake the act and the act does not otherwise violate the government’s obligations or duties. Since the Supreme Court has the authority to make and overrule decisions, and no one has the authority to overrule them, then their decisions are sort of de facto legitimate, even if they violate the Court’s own principles or the general tenor of the Constitution.
But Americans are mostly not scholars. They are not preoccupied with defining terms and engaging in rhetorical arguments based on 178-year-old papers found in a university library. To the typical citizen, the notion that the Supreme Court may have blown its own legitimacy to smithereens will make sense—even if the scholars disagree. Because the sentiment across America regarding the Dobbs decision is that this whole thing feels like a scam.
The reality is that the Court’s move in Dobbs was only possible as a result of a string of borderline illegitimate acts pushed by a rightwing movement. Four of the five justices who voted to strike down Roe previously testified under oath that they would not do so in order to obtain votes of approval to even sit on the Supreme Court. A Senator blocked the Senate from even holding a hearing on a sitting President’s nomination to a vacant Supreme Court seat, even though the Constitution gives the President the right to nominate and the Senate the right to consent to or reject (but not ignore) that nomination. A political party allowed a President to fire FBI Directors, Inspectors General, national security officials, and anyone else who investigated his conduct with no repercussion, all while that same President was making lifetime appointments to America’s highest Court. This is not to mention the Senators who then voted to block the certification of election results from other States simply because their preferred candidate lost the election in those States. The icing on the cancerous cake of illegitimacy came later that same month, when the Senate acquitted the President impeached for telling his armed supporters to go to the U.S. Capitol in an attempt to halt the certification of his election loss. Extra toppings continue to be added, with the continued with election of new officials who refuse to certify any election where progressives, liberals, or anyone who doesn’t subscribe to rightwing theory wins.
Illegitimate. Illegitimate. Illegitimate. We’ve known in our gut for some time that American politics was off-the-rails. But these repeated events have cracked our American alarm bells which were stationed to flag illegitimate governance.
Americans are exhausted, frustrated, confused. We are tired of fighting, tired of feeling like we are always losing—whichever side we are on. While many are concerned about a Trump or a Clinton abusing power, even more express wonderment at the complete inability of our governing systems to stop him (or them, or anyone) from corrupting our government. Sadly, the Supreme Court’s decision in Dobbs is strong evidence that corruption has rotted the structure of our Government to its core, and that the cancer may be terminal. One need only look at the Court’s total disregard for the safety and welfare of American citizens, as explicitly evidenced in its other stomach-churning ruling from June, to know the gravity of the diagnosis. For any government that openly disavows its responsibility for the safety of its citizens, for its children, can lay no claim to protecting or defending life, liberty, and the pursuit of happiness.
On guns, the Court openly mocks the idea it should care about the lives of citizens in its decision-making process.
Days before undermining two centuries worth of its credibility, the Supreme Court’s decision striking down a New York law regulating where citizens can bring firearms had similarly dramatic effect. As a result of its decision, laws protecting some 84 million citizens from the open carry of automatic weapons or handguns in public places were invalidated by six justices because the laws were not sufficiently “Originalist.” The gun ruling is not illegitimate for the same reasons that the abortion decision is, but still presents an existential crisis for the Court and our Country nonetheless. There are numerous scholars (far more intelligent than I) who have detailed how and why the modern Supreme Court misunderstands the Second Amendment. But let’s not focus on the legal correctness of the Court’s decision. Rather, focus on their brazen, explicit disregard for the safety and well-being of the citizens for which they work and are meant to serve.
It is not simply that the right-wing Court demonstrates little or no concern with the idea that gun laws protect the citizenry’s right to pursue life (although the current majority does seem completely unconcerned with mass shootings and ever-increasing gun violence). It is that some members of this Court—Justice Samuel Alito, in particular—have taken a far more alarming “let them eat cake be violently attacked by assault weapons” approach to mounting evidence of citizens losing their right to life, liberty, and the pursuit of happiness by gun violence. As noted by Amy Davidson Sorkin in the New Yorker, Justice Alito went out of his way to mock any notion the Supreme Court of the United States ought to care about statistics that show citizens are dying from assault weapons or handguns. “Why does the dissent think it is relevant to recount mass shootings that have occurred in recent years?” he sardonically asks in his concurrence to the Court’s recent gun decision. “What is the relevance of statistics on children and adolescents killed by guns?”
Forget the lives and safety of the citizens he helps govern: 18th Century books, papers, and letters are more important to Justice Alito than your kindergartener or grandmom.
Notably, Alito attempts to defend his brutish rhetorical questions by couching them in a broader (somewhat confounding) point that since the New York gun law at issue did not successfully stop the recent mass shooting in Buffalo, any reference to that shooting and other mass gun murders should be irrelevant to any analysis of gun regulations. But of course, the New York law may have stopped, deterred, or delayed dozens of violent shootings that Alito does not know about—because they did not ultimately happen. In his bizarre attempt to explain his dismissal of the relevancy or significance of the murder of American citizens who pay his salary, Alito betrayed his belief that his American Government has no interest in stopping some, even a small portion, of mass shootings. This is the kind of utterly unsustainable view of governance that transforms the Court’s rulings on guns into an existential threat to the continued legitimacy of its authority.
For any branch of the federal Government to render rulings and opinions that endanger citizens (let alone 84 million of them in a single day) is indicative of a remarkable fracture in the competency of American governance. The Court may delude itself into thinking gun regulations do not keep anyone safe, but Americans are not similarly deluded. They want gun regulation. Bans of assault weapons have been successful in curbing mass shootings. Waiting periods and restrictions on gun permits lead to lower mass shooting rates in States that had them until the Supreme Court struck them down.
Do not forget—it is we who consent to being governed by the Supreme Court, and the other branches of government, so that they may enable us to pursue life (and liberty and the pursuit of happiness). Any governmental institution that openly questions why it should concern itself with our right to be alive violates its oath to protect and defend the Constitution, as well as the more the ubiquitous duty of government to keep citizens safe from death or serious harm.
While it purports to be governed by justices who claim to act as historian-investigators, the Court’s decision on guns should confuse anyone who has read about the collapse of civilizations in Mesopotamia, Maya, Egypt, Rome, China, etc. Internal conflict is always present as a cause of governmental or societal collapse. When there are automatic weapons being fired in our movie theaters, in our classrooms, in our supermarkets; when there are domestic terrorists attacking our churches and our gay bars and our July 4 parades; when we scramble at the sound of a firework or a car backfiring, then the citizenry is living in fear. There were 60 gunshots in 20 seconds that rang out in Highland Park on July 4. This is internal strife. The violence itself may not always be politically motivated, but its continued propagation upon innocent citizens is made possible by actions that are politically motivated. And so, politics is intrinsically tied to the strife. A government that cannot guarantee safety will ultimately lose its legitimacy, and with that, its authority to govern.
So, citizens are dying, and all levels of government are failing to stop it.
It is not only government on the national scale that is suffering from the cancer of failure. Uvalde’s Police Department comes to mind: police officers armed with automatic weapons stood in a hallway for 40 minutes as a lone gunman continued to murder fourth graders and their teachers. They acknowledged they failed. But the lives have been lost; apologies won’t bring them back. And they are not the first: the government also failed in Parkland, where school administrators (government) sent a student they had flagged as a potential violent threat to others back to class after meeting with him and his parents. Hours later, he shot up the school. They acknowledged they failed. Again, no lives were brought back.
These are failures to honor the basic tenet of the social contract between citizen and government. The People consent to the Government’s authority. The Government can arrest us for breaking its rules; in exchange, the Government must protect us from those who would harm us where it can. But what happens when the Government breaches its end of the deal over and over (and over, and over, and over)? More importantly, what happens when the the national Government begins breaching the terms it agreed to abide by in order to obtain power in the first place? What happens when the Government changes its own definition of the laws in ways that make us less and less safe from death or grievous bodily harm?
And it is not just school shootings. Around the country, our State legislatures are gerrymandered and bankrupt. They are crippled by the same cancerous inaction and corruption that has metastasized from our Federal Government. Do not forget: police officials, local administrators, and State legislators are just as “government” as President Biden, Justice Alito, Senator McConnell, or Speaker Pelosi. And when they fail the citizenry, those failures are often more evident in our lives. But what is good for the goose is always good for the gander in politics. The same cancer that has sickened our politics at the Federal level has spread to the State and local level. When both the Supreme Court of the United States and a local police department are throwing up their hands instead of protecting citizens from mass shootings by domestic terrorists, it is clear something is deeply wrong with our Government.
But it feels like a safe bet that a Government openly shirking responsibility for keeping its citizens safe from violence is one that may not enjoy legitimacy for long. One need look no further than their local newspaper or television to see a dramatic change in discourse since the Court cancelled women’s reproductive rights and expanded the presence of guns across a country traumatized by mass murders. Conservative columnist Max Boot now advocates abolishing the Electoral College and restructuring the U.S. Senate to be proportional to population of the States. While Boot has struck a centrist chord since the Republican Party was formally radicalized into a conspiracy cult in 2016, he now sounds more like far-left House Rep. Alexandria Ocasio-Cortez, who appeared on The Late Show with Stephen Colbert to remind Americans that the United States is a system of checks and balances, with three co-equal branches of government. Ocasio-Cortez argues it is time for the other branches to harshly check a Court that is clearly overreaching, and has politicized itself and delegitimized its own authority in the process.
For now, it’s lip service. But the lip service is growing, and coalescing. The far left was the lone voice advocating for abolishment of the Electoral College for many years. To see a conservative columnist join the ranks of those advocating for such dramatic change speaks volumes about what politically engaged Americans are feeling as a result of the Supreme Court’s overreach. And with each week, as more kids die under desks in schools and as grandparents die in the supermarket, and as stories of women dying from botched abortions or ectopic pregnancies fill the airwaves and front pages, more Americans will be pushed toward radical change.
For those of us who see the writing on the wall already, how do we emotionally and mentally prepare for the endeavor of transforming this broken country? Changing our Constitution is possible—in fact, it’s a key part of how we are supposed to govern—but it would require a political movement like none this country has seen. It would demand grit, determination, unity, and full-time commitment. It would almost certainly be met with threats of violence, and likely physical violence. Some of us may already feel the fire to join the fight, but we do not yet have the benefit of lived experience to know what such a fight may cost or demand from us. Honest conversations must begin about organizing in ways we have not previously.
There is no way of knowing what precisely happens when a government loses its legitimacy in the eyes of its citizenry. But for a citizenry whose entire historical identity is rooted in a rebellion against what was considered to be illegitimate governance by an antiquated and out-of-touch government, it may not take much to send this state of affairs over the edge. For now, it’s safe to say Americans have been pushed to the brink. And that is in large part thanks to the United States Supreme Court.
*I would be remiss if I failed to observe that while the Founders declared the right to life, liberty, and pursuit of happiness to be unalienable, they failed to extend that logic to Black Americans, Native Americans, women, and hosts of other minority groups for decades.
I never consented to be ruled over or to be an indentured servant.