As the latest term of the Supreme Court mercifully comes to an end, here’s your occasional reminder that the current court is illegitimate. Not because senate Republicans blocked any nomination by a Democratic president from even coming to a vote, or because Justice Thomas was caught red-handed soliciting and accepting undisclosed bribes gifts to remain on the court, or because Alito flew the “Appeal to Heaven” flag associated with White Christian Nationalism and sympathy to the June 6th insurrection and then refused to recuse himself on that very case, though such examples of corruption certainly help explain how we got to this point. What finally crosses the line is the conservative majority’s abandonment of the Supreme Court’s core function —impartial, logical interpretation of the law — replacing it with a hodgepodge cherry–picked and inaccurate historical anecdotes, false claims, circular reasoning, shifting legal theories, and increasingly giving no argument at all. In other words, doing whatever it takes to render the verdict they’ve determined in advance.
And so the court continues to gaslight us, explaining how actually the founding fathers would welcome making the president immune from prosecution (and that courts should stay out of his way), how the Second Amendment was never about maintaining well-regulated militia, that a ban on gender-affirming care for transgender minors does not discriminate on the basis of transgender status, that the First Amendment requires that public schools allow parents to opt out from learning that gay people exist, and it’s okay for states to ban individual organizations from Medicaid because “words, who can say what they really mean?” John Roberts insists the court is simply following logic and critics are just sore losers, even though the criticism is increasingly coming from minority members of his own court. And if the majority’s logic was sound, consistent or hell even sensical his calls to blame the author (congress / framers) and not the messenger (the courts) would be a lot easier to accept, but sound logic went out the window the moment the conservative majority got their fifth reliable vote. Nowadays it’s so bad that “Trump-appointed judge” has become shorthand for “you’re about to hear something bat-shit crazy.”
As a practical matter it may not matter that Supreme Court’s rulings are increasingly so much bovine excrement, at least in the short term. After all, the Trump administration is even more corrupt than the current Supreme Court (which is terrifying) and the Republican-controlled congress is completely supine. Fair enough, but it’s still important to remember that what the court is doing is fundamentally corrupt and illegitimate. Josh Marshall calls this Civic Sede Vacantism, a reference to the hyper-traditionalist Catholic movement that holds that none of the Popes since 1958 (and thus none of the canons from Vatican II on) are valid. But if that’s too esoteric for you I have a simpler metaphor: just remember that this is bullshit. “The Supreme Court says the president is above the law so I guess that’s that.” No, that’s bullshit. “The state can force kids to take a pregnancy to term or to go through puberty for a sex that doesn’t match their identity, regardless of parental consent, but the state can’t let kids read a picture book that includes gay characters without parental consent?” Bullshit. “The president can fire heads of (formerly) independent agencies without cause… except for the chairman of the Fed because reasons.” Serious bullshit. And if in a few months the Supreme Court decides to eliminate birthright citizenship (which they just backdoor greenlit in 27 states), that will be bullshit too.
Unfortunately a lot of folks are reacting to these bullshit rulings as if they were legit, calling for congress to pass clarifying legislation or pushing for constitutional amendments. That’s like trying to improve your passing game after the opposing team replaced all their players with killer robots — sure it might help a little, but you’re still going to lose until you realize the other team is no longer playing by the old rules. The problem isn’t clarity: the conservative majority is quite happy to shoehorn whatever reasoning reaches their preferred conclusion within the bounds of their own shame, and at this point they have very little shame. Case in point, the 14th Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”) is pretty damn clear. I doubt a new constitutional amendment saying “we really mean it” would protect it from more skullduggery.
Bullshiters try to win through dominance rather than logic, with arguments that ultimately boil down to “Who you gonna believe, me or your lying eyes?” That’s why it’s the go-to argument for bullies and abusers, and it’s why John Roberts and the other conservatives keep trying to convince everyone that Of course the Emperor is wearing clothes! Bullies get their way by intimidating the opposition into capitulation. If enough people say “I don’t agree with their logic, but Supreme Court rulings are valid by definition,” or “I hate it, but you can’t question the validity of the court and still support the rule of law,” or even “The rulings sound pretty sus, but I’m no lawyer so I’ll just assume they know what they’re doing” then they get away with it.
But if enough people remember those three simple words, this is bullshit, and more importantly come to recognize that this particular Supreme Court is corrupt an an aberration, then we can claw back our laws. Power ebbs and flows, and barring the complete collapse of our democracy liberals will eventually take back the levers of power. The moment they do you can be sure that conservatives will suddenly start squawking about restoring the norms that protect the minority party, the importance of following precedent and respecting settled law, and everything else they jettisoned in their power grab. And we should return to those norms, because they really are important for a well-running democracy. But first we need to purge the corrupt court, and once that’s done we need to ensure that every single ruling from this court has a little virtual asterisk next to it in every legal scholar’s mind that means “Warning: suspected bullshit, please reexamine.”