The Supreme Court’s illegitimacy is accelerating

30 June 2022

Apparently, Brett Kavanaugh made a promise to US Senator Susan Collins, the Maine Republican who says she’s pro-choice, that he would not vote to overturn Roe if appointed to the Supreme Court.

This is getting a lot of attention, because Collins is getting a lot of attention. She said she believed he wouldn’t go there. Then last Friday, he and five other justices went there, stripping half the country of half their social standing and legal status as free and equal citizens.

Since then Collins has been wiping the egg from her face.

His confirmation is getting attention for another reason. It came before the 2018 midterms. The conventional wisdom is that the confirmation of a credibly accused sexual predator nominated by another credibly sexual predator to a lifetime job on a court that would rule on Roe animated women to produce that year’s blue wave.

The conventional wisdom, on account of being conventional wisdom, seems to think last week’s Supreme Court ruling to strike down Roe will have the same, or similar, “Kavanaugh effect” on this year’s midterms. That’s to be seen. According to the AP, 1 million voters switched to the GOP. True, the switch occurred before Roe went down. Some might be Democrats voting in open Republican primaries. Even so, the news is nevertheless a reminder this year favors the GOP.

There’s another reason to focus on Justice Ilikebeer.

He was the beginning of the end of the court’s legitimacy.

Biden is listening

Legitimacy received little attention back in 2018. I felt pretty alone in making the case. (I was told that focusing on legitimacy was what the losing side does.) But current events have caught up to the idea. US Senator Elizabeth Warren, Democrat of Massachusetts, was forceful in telling Martha Raddatz on Sunday: “This court has lost legitimacy.”

They have burned whatever legitimacy they may still have had after their gun decision [Bruen], after their voting decision [Shelby County], after their union decision [Janus]. They just took the last of it and set a torch to it with the Roe v Wade opinion.

While all this is happening, the Democratic leadership, especially Joe Biden, is taking fire from the base of the party for not having a more forceful reaction to Roe’s death. Missouri Congresswomen Cori Bush, whom I take to be representative of the party’s progressive wing, said:

[Democrats] just aren’t fighting. When people see that, what’s going to make them show up to vote? We can’t just tell people, “Well, just vote — vote your problems away.” Because they’re looking at us and saying, “Well, we already voted for you.”

I think voting is the answer, actually, but that’s not going to stop people from demanding more from the Democratic leadership given that the party’s majority (women) has lost half its legal protections.

Fortunately, Biden is listening. This morning, he called on Senate Democrats to make an exception to the filibuster rule in order to codify Roe as well as other privacy rights, like same-sex marriage.

While the Congress gets to work, Reuters reported Wednesday, the Biden administration is planning to issue “a range of executive actions in the coming days.” The White House is “promising to protect women who cross state lines for abortions and support for medical abortion.”

Ignore or reform

So: On the one hand is a court whose rulings are being rejected increasingly by public opinion. On the other is a mad and madder base of the Democratic Party demanding more action from leadership. These energies could collide and break in unpredictable directions. Or they could conjoin to form two strategies for dealing with the court.

Ignore the court.

Or reform the court.

Constitutional scholar Eric Segall spelled out the first one for the Editorial Board. There’s going to be a time, he said, when one of the other branches of government, federal and state, will decide that this court is so far gone that its rulings should no longer be recognized.

For instance: New York Governor Kathleen Hochul could choose to ignore the court’s recent gun decision. Bruen overruled a state law requiring gun permit applicants to prove need. Bruen established a right to carry a gun except in “sensitive places” (to be determined). Hochul could keep enforcing its law as-is in the name of safety.

The other one is better, though.

If most people most of the time think of the court as out of touch, there’s nothing the court could do to stop the Congress from parlaying public opinion into legislation that expands the court, for instance.

Even Republicans are ignoring it

Republican state legislators are demonstrating for us that the Supreme Court is not only illegitimate but that its illegitimacy is accelerating.

According to the Post, Republican state legislators are “advancing plans to stop people in states where abortion is banned from seeking the procedure elsewhere.” The model legislation would give authority to private citizens to sue “anyone who helps a resident of a state that has banned abortion from terminating a pregnancy outside that state.”

The idea is to circumvent federal courts by doing what the Texas abortion ban did: deputize private citizens to act on the state’s behalf. That, in effect, would be a dramatic expansion of its police power.

Why does this make the case for reforming the Supreme Court?

Because it thumbs its nose at Brett Kavanaugh.

In a concurring opinion, he warned states that prosecuting out-of-state abortions would violate the right to interstate travel.

Well, tough cookies.

By outsourcing law enforcement to private citizens, Republican state legislators would create conditions in which there’s no government to sue. If no one has standing, federal courts have nothing to say. Even the Department of Justice might not have the power to stop them.

Not if, when

Republican state legislators are already ignoring the Supreme Court, because the court’s rightwing supermajority gave them permission.

After all, if the highest court is willing to throw out half a century of federal protection of the right to privacy, there’s no good reason for Republican state legislators to hold themselves to a higher standard – to accept as legitimate the legal restraints that Kavanaugh demanded.

The Supreme Court’s descent into illegitimacy is already accelerating to such a degree that reforming the court may soon seem unavoidable. As the president said this morning, the court is no longer a reliable source of law, stability and order. It has become a “destabilizing” force.

The question isn’t if.

It’s when.

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