The Supreme Court’s Latest Decisions Have the Legitimacy of a Mitch McConnell Press Release
The court’s power lies in its legitimacy, which is now gone.
Welcome to Issue #32 of Playing in the Pocket. This is the free monthly edition of the newsletter. If you would like to receive one newsletter a week, please consider becoming a paid subscriber. If you value this work, subscribe!
Thank you as always for reading and subscribing!
ISSUE #32
August 2, 2022
Hello, Wonderful! The latest conservative super majority Supreme Court is embracing the YOLO acronym. They’ve been waiting 50 years for the numbers to be on their side and aren’t wasting any time taking us back to the 19th century when the Constitution represented guns, property, and white men.
In 2016 Mitch McConnell said, “I’m not going to hold a vote for President Obama’s nominee, Merrick Garland, to the Supreme Court,” see such and such precedents.
McConnell cited a bunch of precedents from the 19th century that went something like, “here’s the last time an opposing party considered a Supreme Court nomination in an election year.”
Four years later, when Justice Ginsburg died, Trump’s pick, Amy Coney Barrett, was confirmed a mere 10 days before the 2020 election to replace her seat. McConnell did a 180 and said, well, I can distinguish that precedent from thisprecedent.
What McConnell did here was to engage in “analysis.” McConnell came up with that analysis using precedents to establish a rule.
The rule is clear to everyone, “if my party is in control, then ten days before an election is cool, but when my party is not in control, ten months before an election is not okay.”
This is the same kind of analysis the current Supreme Court is engaged in; they are making up rules to fit their ideology and politics based on cherry-picking precedents. Whatever precedent from the 19th century (when women didn’t have rights) provides and undergirds their limited narrative.
When Mitch McConnell wouldn’t hold a vote on Obama’s nominee ten months before an election, we knew the rule had no internal weight to it.
We know McConnell is a hypocrite.
We know what rules he will come up with because he is Mitch McConnell. Unethical and unprincipled.
We don’t take what McConnell says seriously because we always knew what was coming, something totally amoral from a bad actor lacking good faith.
Well, welcome to the current Supreme Court.
They are now following the same bad faith principles which inform Mitch McConnell’s every political move.
We now view the court how we view McConnell — dishonest and lacking substance.
We understand that the rules and 19th-century precedents Justice Samuel Alito quotes in his majority opinion to overturn a woman’s right to choose is just cover for what we all knew the court was going to do because that is what the conservative Christian right has wanted them to do for nearly 50 years, and now, finally have the numbers to do it.
We won’t be gaslit. We see what they are doing.
Not that the court cares that we see clearly what they’re doing when we listen to their arguments and read their opinions.
Alito’s opinion was a big fuck you to the public. He explicitly stated in the decision that the court shouldn’t consider the public’s views.
The five judges ( Clarence Thomas, Justice Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett) who voted to overturn Roe v. Wadedon’t give a flying fuck that when the public reads the court’s opinion on Dobbs, we see there is nothing there.
It’s unprincipled.
Nor do they give a fuck about the large number of women who will die because of their bad faith jurisprudence.
Abortion, Alito wrote, is “a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” And later: “We thus return the power to weigh those arguments to the people.”
That is what Roe did, and what Dobbs undos.
Roe placed those profound decisions directly in the hands of those closest to the issue — women.
Dobbs strips a woman of that profound and difficult choice to determine her course when she is presented with an unwanted pregnancy. A choice better determined on her terms, perhaps aided by families, friends, and doctors, not determined by a state’s legislature.
Dobbs strips decision-making from those closest to the moral struggle and most deeply invested in it. It gives that power to people and institutions that are not directly involved. Then, with shocking dishonesty, Alito presents this as some sort of magnificent restoration of self-determination. He reads the Constitution — which begins “We the People” — and finds no actual people in it. Only legislatures.
The majority opinion in Dobbs states this flat out. It’s obvious who the court has the most contempt for — the public. Justice Alito’s opinion explicitly says the court does not care about public opinion, nor do they think they should be “shaped by public opinion.”
A more self-aware court.
The plurality opinion in the 1992 case, Planned Parenthood vs. Casey, jointly written by Justices Souter, O’Connor, and Kennedy, reaffirmed a woman’s right to an abortion as granted in the 1973 Roe v. Wade case.
Roe and Casey are precedents and have been established law for 50 years and 30 years, respectively. Alito spent much of his opinion casting aspersions on Planned Parenthood vs. Casey.
Part of what the majority did in a good amount of their written argument in Planned Parenthood v. Casey before diving into doctrine is to ask, “what gives us our power?”
What makes the Supreme Court’s opinion more supreme than others’?
The text of the 14th amendment or any other amendment in the Constitution is vague. So decisions and laws can’t just be guided by the text alone. So what gives the Supreme Court its power over other bodies, like Congress? What gives more weight to SCOTUS opinions?
Legitimacy.
In Casey, the court finds that their legitimacy in the public’s eyes is what makes their opinion supreme. The word legitimacy appears over and over again in Casey. It says the court’s power lies in its legitimacy, which it defines as a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s laws mean and to declare what it demands.
Meaning, that the court has the power it does because people think the justices engage in principled decision-making.
If the public doesn’t think that the court engages in principal decision-making, (as the laughable Dobbs decision depicts, with Alito’s opinion supported by precedents when women were property) they won’t be taken seriously and are the equivalent of a Mitch McConnell press release.
We no longer see the court acting and ruling in a principled manner. We no longer put any weight on Supreme Court decisions because they are no longer made in good faith or backed by substantive arguments.
Casey — 1992
Casey was jointly written by associate justices Sandra Day O’Connor, Anthony Kennedy, and David Souter.
They upheld the “essential holding” of Roe, which was that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protected a woman’s right to have an abortion prior to fetal viability.
From Casey,
Overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. 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. Moreover, the country’s loss of confidence in the judiciary would be underscored by condemnation for the Court’s failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.
The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
See you next Tuesday. Have a great week!
Jessica - xoxox
This is a reader-supported newsletter. Both free and paid subscriptions are available. The best way to join the community and support my work is by paying for a subscription.
That's you, second from the left in the picture, right? I love the new do!