Over the past three years we’ve seen a flood of disastrous 6-3 decisions come out of the Supreme Court, upending centuries of established law. While most of us have concentrated on the real-world impact, from women forced to bear non-viable fetuses to public schools engaging in religions indoctrination to Donald Trump being granted what amounts to a judicial pardon, legal scholars have lamented what comes down to incoherent and generally bat-shit crazy law. The right-wing majority switches between legal theories like they’re flavor of the week — in one case they’ll limit their analysis to just the plain-text meaning of the law, in another they’re all about historical context, then they’ll subscribe to their not-at-all-made-up theory of the major questions doctrine, and then some days it’s just plain vibes. Stare decisis, the idea that the Court should not overturn settled law without a clear change in underlying circumstances, is either thrown out the window or held as bedrock principle. Taken individually there is seemingly no rhyme or reason for the majority’s choice of guiding principle, and even within the chosen interpretive theory decisions often rely on cherry–picked and inaccurate historical anecdotes, and even false claims about the plain facts of the case itself. But taken as a whole it’s obvious that their decisions always favor their own right-wing agenda: eliminating gun control, knocking down the barriers between church and state, hamstringing the other two branches’ ability to regulate businesses (at least in ways the Court doesn’t like), abolishing the right to abortion, allowing states to gerrymander in ways that benefit the Republican party, and of course ensuring that Trump never has to answer to any of the crimes he has committed.
What has been clear since Dobbs is now undeniable: the majority wants to force their own religious and ideological view on the rest of us, and they’re perfectly willing to start with their desired conclusion and then work backwards to come up with some fig-leaf reasoning if that’s what it takes. After all, Republicans didn’t spend years bribing Justice Thomas to remain on the court, stonewall all of Obama’s nominations eight months before the election, abolish the filibuster for Supreme Court confirmations, court Justice Kennedy to resign, stand by a nominee credibly accused of sexual assault, and ram through a third confirmation literally weeks before the next election just to watch their shiny new majority make slightly more conservative rulings. The incoherence is just a side effect — it turns out it’s surprisingly hard to maintain a coherent legal doctrine when you’re hell-bound determined to shoe-horn whatever argument you can to fit the conclusion you’ve already reached.
Roberts and the rest of the Federalist-Society-approved majority claim they are simply overturning centuries of badly-reasoned law, but there’s no reason the rest of us have to buy into this gaslighting. Call it what it is: a demand by a rogue court in active revolt. In essence the Court is saying “we’re calling the shots now and if you don’t like it, sue us!”
Alexander Hamilton famously called the judiciary the weakest of the three branches because it has “no influence over either the sword or the purse.” But he then goes on to say “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.” Unfortunately the unconstitutional leanings of the rogue majority is shared by the MAGA-owned Republican Party that currently runs the House, leadership in almost half the states, and possibly the Presidency come next year. The flag adopted by both Christian Nationalists and the January 6th insurrection has recently been flown by both Speaker of the House Mike Johnson and Supreme Court Justice Sam Alito. We’re dangerously close to the tipping point, and honestly I think if Trump wins the presidency then the Republic will be damaged in ways that can’t simply be reverted. And this court is going to help Trump become president any way it can. Count on it.
But if the Republic does survive then this reframing has two implications.
First, lawmakers should have no compunction about taking any legal means to clip the wings of this rogue court, including doing away with the filibuster if necessary. There are many proposals out there: undoing their worst rulings through legislation, term limits, jurisdiction stripping, impeachment and removal of some of the most corrupt justices, and increasing the size of the court to name a few. None of these are easy — most require at least a simple majority in both houses and the presidency, which is not happening immediately and in the meantime this court and state legislatures are actively working to thwart it. But Democrats, and Republicans if the party ever becomes sane again, should run on fixing the courts and should ignore the howls from those who have already proven themselves bad-faith actors.
Second, our legal scholars and lawmakers need to internalize that this is not a normal court. We really do need the stability that stare decisis gives, but at the same time we can’t simply reward bad actors by locking in years of the fruits of corruption. My dream is that some day we can reach a consensus that every last decision from the last few years (and possibly even the entire Roberts court) has a little virtual asterisk next to it indicating that it needs revisiting.