Politics and the Supreme Court's Self-Inflicted Wound

Who besides me is exhausted from this week of political revelations and high court decision-making? The week saw two days of Congressional hearings concerning charges that the former President tried to steal the 2020 election. Not to be outdone, the Supreme Court issued two breathtaking decisions: one limiting the power of states and municipalities to restrict the carrying of handguns, and the other overturning one of the Court’s own precedents that has protected women’s rights to bodily autonomy for nearly half a century. With little sense of irony, Congress also passed the first federal law in decades designed to reduce the risk of gun violence. Meanwhile, our President is in Europe meeting with the G-7 to discuss inflation, the risks of an economic recession, and Russia’s ongoing war against Ukraine. It’s enough to make my head spin.

Today, though, I want to focus on the abortion decision. I do not intend to dive into the substance of the debate about whether abortion is right or wrong or can ever be justified. My own position is not far from the position of another man, as reported by a friend of mine on social media: he is 100% opposed to abortion but 1,000% in favor of a woman’s right to choose. I’m fully on board with half of that equation and sympathetic to the other half.

But I want to focus on a different concern, namely, what Dobbs means for the legitimacy of the Supreme Court. At the oral argument held in December, Justice Sotomayor asked a critical question: “Will this institution survive the stench that this creates in the public perception that the constitution and its readings are just political acts? I don’t see how it is possible.”

The answer to her question, focused as it is on the Court’s survival, technically is “yes.” The better question may be whether the Court’s overturning of Roe will weaken the public perception of the Court’s legitimacy? That answer, I believe, also is “yes.” And in a time when the institutions critical to the functioning of our democracy have been under unprecedented attack, the last thing we need is a Court weakened by its own intellectual promiscuity.

To understand the self-inflicted threat to the Court’s legitimacy, it’s important to remember how we got here. The story begins in March 2016, when President Obama nominated Merrick Garland to replace the late Justice Antonin Scalia on the Court. To many, Garland was viewed as a centrist, someone whom Obama thought would be noncontroversial and would gain relatively easy confirmation. Then-Senate leader, Mitch McConnell, in an unprecedented move, refused even to grant Garland a hearing on his nomination, proclaiming that the nomination was too close to the upcoming Presidential election, still eight months away. McConnell’s crafty political maneuvering thus deprived Obama of what should have been an appointment to the bench that would have tilted the Court’s balance more from the right towards the center.

Democrats at the time expected Hillary Clinton to win the 2016 election, so the loss of Obama’s appointment caused concern but not widespread panic. When instead Trump won, all bets were off. He swiftly nominated Neil Gorsuch, a conservative federal appellate judge who had served as a law clerk to Justice Scalia and could be counted on to keep the Scalia seat firmly in conservative control.

The next surprising event was the sudden resignation of Justice Anthony Kennedy from the Court in the summer of 2018. Justice Kennedy, a Reagan appointee, was often the Court’s swing vote, sometimes voting with the four conservatives and sometimes voting with the four liberals. His retirement had the air of scandal, as his son worked for Deutsche Bank, which had made millions of dollars of loans to Trump. Some speculated that Trump used the young Kennedy’s position with the bank to apply pressure on Justice Kennedy to resign, though I am not aware of any actual proof that he did so. (As we lawyers are taught in our ethics courses, even when there is no actual impropriety, the mere appearance of impropriety can impact the perceived legitimacy of a court, a concept that has been front and center recently given the questionable political activities of the wife of Justice Thomas, including activities that may have occurred on or leading up to January 6, 2021.)

Justice Kennedy’s surprise resignation allowed Trump to nominate Brett Kavanaugh, whose confirmation to the Court was enabled in part by the vote of Republican Senator Susan Collins. She now claims that Justice Kavanaugh deceived her into believing he would not vote to overturn Roe, yet vote to overturn he did. The Kavanaugh confirmation, enabled by the Kennedy resignation, moved the Court further to the right.

The final move towards a strong conservative majority occurred when Amy Coney Barrett replaced the late Ruth Bader Ginsburg in the fall of 2020. The circumstances of Justice Barrett’s appointment further led to cries of outrage from the left.

Justice Ginsburg died on September 18, 2020, just weeks before the upcoming Presidential election. Republicans still controlled the Senate, which meant that Mitch McConnell still controlled the Senate’s confirmation process. Unlike what he had done with Obama’s nomination of Merrick Garland, blocking it for the ostensible reason that the nomination came too close in time to the 2016 Presidential election still eight months away, McConnell rushed to get Justice Barrett confirmed within a few short weeks of Justice Ginsburg’s passing. Republicans cheered while Democrats bemoaned the rank hypocrisy behind McConnell’s tactics.

The ultra-conservative Barrett thus replaced a staunch liberal on the bench, which cemented a deeply conservative majority. In fact, with now six Justices appointed by Republican Presidents, that majority constitutes a super-majority. And that super-majority has already inflicted severe damage to the Court’s reputation among people on both the left and the center of the American political spectrum.

Chief Justice Roberts, himself a conservative, is rightly concerned about the damage this new composition has inflicted on the institution he leads. Increasingly over the last several years, concerned with protecting the Court’s reputation as the apolitical branch of government, he has either voted on key issues with the liberal Justices (remember his vote that saved the Affordable Care Act?), or at least has advocated for a more incremental approach in undoing liberal rulings (as he did in his concurring opinion in Dobbs). Now, with five justices firmly to his right, he has lost control, and those five justices can be counted on increasingly to vote as a bloc to roll back the progress towards civil liberties that has been made, not only over the past 50 years since Roe, but even over the past 60 years or more, as Justice Thomas now advocates in his own concurrence in Dobbs.

And so, here we are. This new conservative super-majority is now in charge of the interpretation of the United States Constitution, and are emboldened to overturn longstanding precedents to achieve their vision of what America should be. When it suits them, as it did in Dobbs, they are prepared to return authority over civil liberties from federal protection to the states. Also when it suits them, as we saw in this week’s Second Amendment decision, they are prepared to restrict the power of states and municipalities to enforce regulations designed to protect those authorities’ citizens. In short, these Justices, three of whom were appointed through cynical right-wing maneuvering, are now empowered to promote the radical right-wing agenda of those who selected them and put them in office.

I don’t doubt that these justices sincerely believe that they are acting in America’s best interests. Nor do I question the good faith of those who subscribe to an originalist interpretation of the Constitution, one that has at least a reasoned, if not ultimately persuasive, basis. I only fear that the political power-plays that resulted in their taking office, and their willingness to exercise the Court’s power to undo the decisions of justices who preceded them, will give, and already has given, rise to a heightened cynicism among the American public concerning the goodwill of the men and women who populate our cherished institutions. It takes a certain arrogance, after all, to overturn a longstanding and highly valued decision of your predecessors, not to mention a certain willingness to overlook the suffering that such overturning will inevitably cause.

At the end of the day, that’s what this is about. It’s about the cynical use of power to achieve undemocratic ends. Mitch McConnell may be proud of his accomplishment, using hardball tactics and disingenuous reasoning to shape the Court into a right-wing dream team. But it doesn’t take much imagination to conclude that he has politicized the Court beyond any politicization that has occurred in recent memory, or that the Court is now composed of Justices who seem willing to aggressively move our country in a direction that will elevate the wishes of the minority over the well-documented wishes of the majority. Few things could be more harmful to the American promise than the loss of trust in this crucial branch of government that these political machinations will inevitably produce.