Today’s Supreme Court: An American Crisis

[This piece ran as a newspaper op/ed in mid-July, 2023.]


There are good reasons why Americans’ esteem for the Supreme Court has plummeted in recent times.

One reason has been the public’s hearing about the scandals of garden-variety corruption in the Court. Thomas with his billionaire, Alito with his.

(One law professor challenged Alito, irrefutably:

“If you were good friends, what were you doing ruling on his case? And if you weren’t good friends, what were you doing accepting [the goodies he received from a billionaire]?”)

The Justices on past Supreme Courts were far more scrupulous about avoiding even the mere appearance of corruption.

Not surprisingly, many Americans are disgusted by this smell of improper influence.

Equally repellent is the Court majority’s unbridled arrogance – as shown for example by

  • The refusal of the Court – whose integrity is more important than anyone else’s in the nation – to impose upon itself the kind of ethical rules that everyone else is compelled to follow.
  • The Chief Justice’s condescending — even contemptuous — refusal to appear beforn the Senate Judiciary Committee, as if the Supreme Court were somehow uniquely above the American system of “checks and balances.”
  • The Court’s increasing usurpation of the legislative role belonging to Congress.

Then there’s the widespread public rejection of the specific action of the Court on abortion, overturning Roe v. Wade with a theocratic and contemptuous opinion that was contrary not only to “established precedent” but to the opinion of two-thirds of the American people.

But the most serious problem with this Court isn’t any of that. It’s that this Court has betrayed its role as the Last Word for the Rule of Law, but instead is contorting “Law” to advance a partisan interest.

With only token exceptions, this Court’s “opinions” are just concocted to get the conclusions that advance the goals of the Republican Party.

Never in the Court’s history has the lack of principle been more flagrant.

In earlier eras, it is true, the Court contorted itself to give some powerful interest what it wanted:

  • Its terrible 1857 decision in Dred Scot was simply the voice of the Slave Power.
  • It’s jurisprudence from the 1870s to the 1930s might have been written by the powers of industrial capitalism.

But never, until now, has there been a Court so completely allied with a political party across a wide spectrum of issues.

This Court often only pretends to be applying the law:

Like the decision in Citizens United to open the floodgates enabling private money greater power to affect elections. The Republican-appointed majority (5-4) declared that opening these floodgates would not result in money gaining greater influence.

They’d have had to be fools to believe that.

But of course they’re not fools. They just pretended to believe that to obscure what really determined the outcome: enabling the plutocracy to replace People Power with Money Power. The Court, like the GOP in the elected branches, serves the mighty corporate system.

They again pretended to believe what only fools would believe when they stripped away crucial parts of the Voting Rights Act: pretended to believe that there remained no need to protect racial minorities from discriminatory changes to election laws.

Not being fools, those Republican-appointed justices were surely not surprised when former states of the Confederacy immediately passed the very kinds of laws that the Voting Rights Act had been written to prevent– laws whose clear purpose was the disenfranchisement of black voters.

On almost every issue that comes before it, this Court advances Republican preferences (from eroding the Clean Water act, to twisting the historical record to achieve Republican results on the issue of guns, to abortion, to enabling the theocrats of the right to use the powers of the state to advance their religious views).

We are hearing now in the dissenting opinions things we have not heard before—complaints about the Court’s violating the Constitution, and about “the stench” emanating from the Court.

The use of the “Law” as a mere instrument of power is a defining characteristic of Fascism. Democracy, by contrast, uses the Rule of Law check unjust power. In the central political battle in these times — Democracy vs Fascism – today’s Supreme Court represents a major victory of the Fascist power

In Democracy, the people choose the legislators and “No one is above the law.” In Fascism, the Law is about the powerful few enforcing their rules on everyone else.

And it’s no coincidence that the Party that has created this corrupt Court is fascistic in many other ways, like:

  • the use of the Big Lie,
  • the acceptance — even use — of political violence,
  • the scapegoating of vulnerable minorities,
  • the transfer of more power to the already mightiest,
  • the dismantling of rights,
  • the predilection for conflict over cooperation.

Having appointed six of the nine current members of the Court, that fascistic Party has gained control of the Supreme Court. Any attempt to recapture that territory for Democracy faces a dilemma:

  • Continuing to give a lawless Court the last word on the Law is a defeat for the Rule of Law;
  • But ceasing to honor the Supreme Court also undermines the American system of justice.

Whatever the appropriate remedy, the place to start seems clear: Americans must be alerted to the reality and gravity of the challenge.

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