Why shouldn’t we be mad at the Supreme Court? If you’re a Democrat or liberal or progressive, the conservative majority’s every move seems unethical. The recent decisions seem to have supported our current president’s demagogeury. The best parts of Roe v Wade and the Civil Rights Act of 1964 have been overturned. Redistricting to favor certain parties has been allowed.
But that’s not the whole story. And it’s not the whole story because the story of the Supreme Court, and its importance to democracy, is a very long story.
What the Supreme Court does
Since Marbury v Madison in 1803, the Supreme Court has been considered the arbiter of the Constitition. They enforce this authority when a case comes before them, typically a case that has come up through the lower courts and seems to rely on a constitutional issue. They adjudicate that case based on whether or not the law being broken in the case was constitutional. That’s its only role.
They make these decisions based on case law and the precedent established by previous Supreme Court decisions. Doing so is part of what keeps our Constitution a living document.
Supreme Court justices are usually lawyers or judges confirmed by a set process. The president nominates, and the person is confirmed with the advice and consent of the Senate. Each nominee’s previous decisions on the bench can give a strong hint of the nominee’s bias, but one never knows what will happen when that person becomes a Supreme Court Justice. They promise to consider each case on its merits. This is why they are justices for life, so that they cannot be removed for political reasons.
We consider some justices liberal and others conservative based on their records. So the justices are not unbiased, but in most cases they are highly educated and experienced in the law. And despite what individual Americans think about their loyalties, they are sincere.
(Why is this important? It is always a mistake to think that your opponent is not sincere in their beliefs. Doing so weakens your ability to counter them with your own. If one values rationality and understanding, it is important to understand the opposition’s position, even if to you it might seem irrational, or stupid, or cynical.)
When a case is weak
Sometimes the cases that come before the Supreme Court are weak. If the majority of the Court is “activist” (their values and biases are obvious as they try to use law to bolster a cultural stand), a decision can be made that is based on a weak case. Roe v Wade is one example. The case was based on the Fourteenth Amendment, determined through case law to include “personal liberty” and the right to “privacy”.
When any justice or justices disagrees with the Court’s majority decision, they may write a dissent. Two justices did this with Roe, questioning privacy as a constitutional right, the legal standing of one pregnant woman to represent them all, and the universality of the cultural change in the view of abortion used in the majority decision. I have always been surprised, even as a vehement supporter of abortion rights, that Roe held as long as it did. An originalist (someone who emphasizes only what the founders intended at the time) would say that since abortion is not mentioned in the Constitution, it is the right of the individual states to legislate about it according to the Tenth Amendment. The Blackmun Court created the idea that there was a right of privacy ensconsed in the Ninth.
Many say that right now we have an activist conservative Court.
The current situation
Again, the Court can only decide on constitutionality, and only on cases brought before it. Some of these have been brought by lawyers of somewhat dubious expertise and limited experience.
The current president’s ongoing “emergency” decisions demanded of the Supreme Court have revolved around cases much weaker than Roe’s, because often there is no actual law being violated. This president specializes in doing whatever he wants because there’s no law against it, only tradition, or ethics, or common sense. So it should surprise no one that the cases seem to be argued or presented hastily in the rush to defend long-held understandings.
For example, there are either no laws or weak laws about building monuments, destroying parts of the White House, making millions while in office, sending relatives instead of Cabinet officials to negotiate with foreign countries, firing bunches of people in order to disembowel a federal agency, using commercial media to set policy, letting in or excluding from the country whoever he wants, purging the military, or painting the bottom of rectangular pools.
Times have changed. They tried to take away President Obama’s Blackberry because it was not secure. Now the president can rail on X at all hours of the night, and it gets reported as policy in the media. There was no law against President Obama using his Blackberry, and none against the current president posting whatever he wants.
Congress makes laws. Not the president, not the Supreme Court. The separation of powers (also a tradition rather than a law) has been undermined in many ways over the last several decades. But the power to legislate, and to fund, still relies on Congress. If after the first administration they didn’t have the sense to pass laws preventing executive overreach, insanity, stupidity, and egomania, why are we expecting the Supreme Court, even more limited in its remit, to descend like angels and fix it?
The long game
Supreme Court justices realize they play a role in the history of the country. As such, they play the long game, embedding both majority decisions and dissenting opinions with many examples of historical cases. They do this not only to support their point at the time, but to provide information and direction for future courts regarding similar cases.
Justice Kavanaugh did that clearly in Trump v Barbara, the case regarding the Executive Order about birthright, in an opinion that concurred in part and dissented in part. The case, he implied, was weak, because Congress had passed no law declaring that the children of undocumented people were not citizens. He wrote:
If Congress amends §1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster.
In last month’s decision regarding the rebuilding of the East Wing of the White House (National Park Service, et al., v. National Trust for Historic Preservation the United States), the court deemed that the complaint of one person (albeit a person of importance and knowledge) in being affected by the aesthetics of the ballroom construction, did not signify harm nor give standing. Again, they can only decide on constitutionality.
This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.
It was a weak case, and the majority opinion ends with a paragraph that begins: “Today, we do not pass upon the legality of the government’s East Wing project.”
But Chief Justice Roberts, in a move that surprised a lot of people, then wrote a dissent. It begins:
That construction is likely unlawful. Pursuant to its plenary constitutional authority over the District of Columbia and federal property, Congress has explicitly prohibited the construction of any “building or structure . . . on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” 40 U. S. C. §8106. The ballroom is a building or structure being erected on federal park grounds—President’s Park—in the District of Columbia. Yet Congress has not passed any law resembling “express authority” for the Executive’s construction of it.
If there had been such a law, the ballroom would be ok. Without it, it’s illegal. But the case that came to the Supreme Court wasn’t about the legality of building the thing. Congress would have had standing in such a case, but they didn’t sue.
So why not get mad at the Court?
Consider our democracy. All of it. Historically and at present. Its current threats, including efforts to undermine fair elections. Consider the possibility that each justice, and the court itself, is doing its job, using the knowledge (yes, and biases) of its members to hash out the legal issues that impact constitutional law. If we believe that isn’t happening, or that they’re doing it all wrong, what is the alternative?
If the Supreme Court is corrupt, is deliberately handing executive power to support demagogeury and, ultimately, dictatorship, then any efforts to bring better cases are moot. It’s like “defunding” the police. You take away the resources the good actors need in order to punish the bad ones.
Instead, how about observe what the justices (and their clerks) do? You have a bias: liberal, conservative, radical, whatever. You have already adjudicated what you think is right and wrong. Now look at the decisions. They’re all there on the Supreme Court’s website. How do the justices who hold views you don’t like justify their positions? How do the decisions you do like justify theirs? Which might be easy to overturn later, or to solidify through Congressional action?
Then go yell at Congress.
