There’s nothing I can add to the overnight news out of the Supreme Court and Texas that we haven’t discussed previously: the Supreme Court is both corrupted and corrupt. One of the court’s nine members sits illegitimately. At least five of the current conservative majority have opted for a parodic version of what the judicial right once denounced as “judicial activism.” The conservative majority’s jurisprudence is a results-oriented approach abandoning both precedent and the more basic interpretive traditions to arrive at the preferred outcomes of either the Republican party or conservative ideology generally. A 6 to 3 Court doesn’t require extraordinary measures to overrule Roe. It seems prepped to do so next year in a case from Mississippi. The overnight decision – which rather overstates what the Court did – is another example of the injudicious exuberance to use the Court to remake the nation’s laws in ways that mere democracy will not allow.
The Court’s corrupt. The solution is to expand the number of justices on the high court to at least thirteen in order to break its power. I don’t know when this will be possible. We don’t know the future. But it is important to know what the correct and proper solution is.
For the immediate issue of reproductive rights the logical decision is to take the standing precedent of Roe and Casey and enact it into law right now. Given the aforementioned corruption I think it is quite likely the Court will strike such a law down, in whole or in part. If it does the Court will simply indict itself and I believe hasten the political will to break its power.
I would be remiss if I didn’t add that Justice Breyer is in the process of handing the corrupt majority a seventh seat by insisting on remaining on the Court with no justification whatsoever.
He deserves the most unremitting scorn.
This is not only a verdict on his selfishness and self-regard. His rationale for remaining on the Court at the risk of further empowering the corrupt rightwing majority is emblematic of a further problem. It is on a par with those liberal legal academics who in recent years have penned editorials confidently informing us that while they disagree with now-Justices Gorsuch, Kavanaugh and Barrett they are nonetheless learned and brilliant jurists of integrity who deserve our support in ascending the bench.
This decision – or rather bad faith refusal to render a decision – is emblematic of the fact that that claim fails even on its own terms. But there is a deeper problem with the claim. It imagines that constitutional jurisprudence is a specialized professional discipline that commands our public assent and support regardless of the outcomes it delivers. If a lawyer has mastered the technical processes of constitutional jurisprudence and has a keen mind they should be supported regardless of their beliefs or likely decisions, the argument goes. This is an argument both dangerous and absurd.
As civilians we don’t presume to judge the personal beliefs or research ambitions of physicists who do advanced research at universities or build our nuclear weapons. We defer to all sorts of specialized domains of knowledge. With all due and real respect to various friends and peers who do important work in the field of law, lawyering is not such a field of knowledge. The suggestion that it is is part and parcel of the same general institutional arrogance of the elite academic legal profession that leads countless law professors to head out on disciplinary safaris into economics, history, psychology and virtually every other domain of knowledge. They actually imagine, risibly, that a JD – a limited and largely technical credential – enables one to launch off on this sort of intellectual tourism as easily as a member of the New York bar might get waived in to try a case in California as a matter of professional courtesy. Both claims are products of the same professional arrogance. And in the case of deference to Court appointees it is an arrogance that menaces democratic and civic life itself.
None of this is to suggest that being a lawyer or a judge requires no relevant knowledge or that the legal and judicial process in all its manifestations are not complex and important. An agreed upon framework of laws, precedents and processes by which we adjudicate the critical questions society faces is the essence of the rule of law. And the rule of law is the sheet anchor of civic and democratic life. Indeed it is that critical essence of the rule of law that the corrupt right wing legal establishment is increasingly indifferent to. The modern appellate judiciary is an inherently policymaking entity. In a democratic society the public has every right to judge potential members on the basis of their probable decision-making. Indeed, beyond a threshold level standard of temperament and intellectual honesty and curiosity it is the only plausible and even imaginable standard on which to do so.
When a purported leading light of the liberal legal academy confidently informs Democratic voters that a hard right ideologue deserves their support we can see they have quite simply lost the plot. Or to put it differently, they’ve forgotten who they work for. On the merits, they are in the thrall of the conceits of their profession believing they are participants in a domain of knowledge akin to physics or medicine rather than one that is involved in value decisions of public policy and is – lets be frank – entirely self-referential and made up. More practically, all their coveted judicial appointments come not from jurisprudential merit or innate brilliance but rather from Democratic voters, just as conservative lawyers get their gigs from Republicans voters.
This does not mean that we should have a system in which you pack the courts with lawyers who will act as an allied wing of the legislators of the party that appointed them. The proper functioning of the courts is one in which we have an agreed upon system of rules and precedents for adjudicating novel societal questions. Courts should largely defer to the decisions of legislatures. Of course, that “largely” and just where that line is drawn is the heart of the matter. But that is the framework we should aspire to in finding our way back from the broken and corrupted present.
For my own part I am most persuaded by the late John Hart Ely’s argument in Democracy and Distrust that judicial activism is most and perhaps only appropriate in intervening in cases where the function of democratic processes themselves have broken down or become impeded. For present purposes suffice it to say that courts should defer to legislatures rather than, as is now almost the rule for the Republican-packed courts, seeing their role as intervening to impede what they seem to regard as the inherently suspect case of Democratic political power or legislation. (In the Roberts Court jurisprudence, if not Roberts himself, Democrats get strict scrutiny.) But whether a restrained or activist Court, this will always leave a significant role for the appellate judiciary’s inherent policy-making function. Voters have every right to judge any potential jurist’s policy-making and ideological lean. That is all the more the case when they are ideologues who see it as their perogative, as the members of the current far-right majority clearly do, to super-legislate from the bench.
The current Court is deeply corrupted and corrupt. The lawful remedy is to create new seats on the Court to break its power. The lawful solution to overruling Roe is to take current precedent as of today and enact it as law.
