The coming delegitimization of the Supreme Court

Today, the United States Supreme Court voted 5–4 to uphold Donald Trump’s “travel ban,” which bans travelers from majority Muslim countries.

If you know me at all, you already know I think this is a terrible decision. I think the fundamental purpose of the Constitution — of any constitution — is to protect against tyranny of the majority, particularly against “discrete and insular minorities,” as the Supreme Court put it in 1938. U.S. v. Carolene Products, 304 U.S. 144, 152 n.4 (1938) (citing cases like this because Medium doesn’t allow footnotes and I brought the receipts). Unlike many of my fellow progressives, who would rather do away with the Supreme Court and its history of reactionary rulings, I believe the existence of a court is necessary to safeguard against the majority. Perhaps it’s because of my family history or the fact that I’m an obsessive genocide researcher, but I have an extraordinary distrust of majorities’ attraction to racism and nationalism, and I believe it’s worth some bad decisions to have a safeguard for basic human rights.

In Trump v. Hawaii, the Court failed to protect these very basic rights. If this happened in a vacuum, I’d be upset, but I’d ultimately decide it was time to fight like hell and convince more people to see the Constitution the way I and many others see it. That’s what you do in a functioning democracy, with the joys and perils of judicial review — you win some and you lose some, even if the losses hurt really bad.

But this is not an issue of the Court doing something that I disagree with. That happens a lot, and that’s okay. I feel quite confident that the Constitutional Law classes reading Trump v. Hawaii in 2050 will be wondering how on earth Sonia Sotomayor’s opinion was the dissent, but maybe I’m wrong, and maybe the U.S. really is meant to be a country that bans Muslim immigrants by proxy. I accept that I’m not all-knowing, and that I may be wrong.

The problem is that as the Court closes out its 2018 term, we seem to have a Court arguing in bad faith and hardly pretending to be upholding any Constitutional principle, instead choosing to apply contradictory ideas that have no common thread except their ability to implement a Republican agenda.

To start, let’s consider just this year’s opinions. In Masterpiece Cakeshop, the Court ruled that Colorado’s Civil Rights Commission had violated the rights of a baker by “disparag[ing]” his religion when he wouldn’t bake a wedding cake for a gay couple. Masterpiece Cakeshop v. Colo. Civ. Rights Comm’n, 584 U.S. __ (2018). I disagree for many reasons, put best in Justice Ginsburg’s dissent, but the Court recognized discrimination even when the law was facially neutral. As obvious as that concept sounds, that’s a pretty big jump for the Supreme Court. In a vacuum, I’d accept it and fight it.

On the plus side, Masterpiece should have made Trump v. Hawaii a slam-dunk for those of us opposed to a Muslim ban. Justice Kennedy’s opinion was a thorough rebuke of just about everything the Trump administration argued. Given that Masterpiece was decided on the discriminatory intent/animus issue, and that the travel ban was subject to this same equal protection analysis (the same jurisprudence, but the 14th Amendment in Masterpiece and the 5th Amendment in Trump), there really shouldn’t have been any question. From Noah Feldman at Bloomberg:

Trump’s anti-Muslim comments are more explicit, offensive and repellent than anything the single commissioner said. What’s more, the president was the sole decision-maker with respect to the travel ban, not just one official who was part of a long, iterative process like the commissioner.

But the Court did not find that Trump’s comments—literally saying he was going to do a “Muslim Ban”—displayed sufficient animus relative to the policy.

“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” Trump v. Hawaii, 585 U.S. __ (2018).

These two opinions cannot be reconciled. Some (like the majority) will argue that doctrine gives deference to the executive branch. This is true. I can’t sue Trump for his dumb Iran policy, and rightfully so. But once animus is invoked, that’s no longer the question. If there was sufficient animus in Masterpiece, there simply has to be in Trump.

Put succinctly:

These contradictions have become a pattern. Take another decision today: Nat’l Inst. of Family and Life Advocates v. Becerra, 585 U.S. __ (2018). In this case, the Court ruled that California cannot force “crisis pregnancy centers” to give medically accurate information about abortions. I think this is a bad decision, because I believe the government should protect vulnerable people, and while anti-abortion groups should be free to protest abortion, states should also be free to enact laws that protect vulnerable women’s rights to know the truth. But if you think free speech is more important than protecting people in vulnerable situations, that’s fine. We can disagree.

The problem is that the Court completely contradicted itself. In Planned Parenthood of Se. Pa. v. Casey, which is still good law (and was even more strongly-affirmed in Whole Woman’s Health v. Hellerstedt, 579 U.S. __ (2016)), the Court ruled the opposite:

“To be sure, the physician’s First Amendment rights not to speak are implicated … but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992).

Again, there is no way to reconcile these opinions. There is no way to claim that the Court is following some legal principle that happens to lead to seemingly contradictory results. These decisions cannot coexist in a cohesive jurisprudence.

Swing justice Anthony Kennedy has been arguably the most self-contradictory figure this term. While he styles himself as a First Amendment and freedom advocate, Kennedy just wrote two concurring opinions on the same day that are entirely incompatible.

But it’s not just the inconsistency—it’s the fact that the Court’s conservative block has taken to just making up legal rules out of thin air. Conservatives love to argue that liberals are “legislating from the bench” — see, e.g., Epic Sys. Corp. v. Lewis, 584 U.S. __ (2018)—but recent conservative decisions have no basis in accepted jurisprudence.

The worst offender is Shelby County v. Holder, in which Chief Justice John Roberts fulfilled his career-long dream of gutting the Voting Rights Act under the so-called doctrine of “equal sovereignty of the states.” That doctrine does not exist in Constitutional jurisprudence as it relates to the Voting Rights Act.

Roberts tried to claim that “equal sovereignty” is based on South Carolina v. Katzenbach, citing that case numerous times. Shelby County v. Holder, 570 U.S. __ (2013). But Roberts shamelessly and unethically misquoted Katzenbach, which said that “equal sovereignty” did not apply to the Voting Rights Act.

“The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966).

That’s a brazen misuse of judicial power, but it’s unsurprising, given that the only other case that supports Roberts’s position (other than his Court’s prior decisions) is Scott v. Sanford, which ruled that African-Americans had no right to sue in federal court, and “no right that the white man is bound to respect.”

“The Constitution having provided that “The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States,” the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States, respectively. The cited clause is not that citizens of the United States shall have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State by virtue of that great fundamental condition of the Union — the equality of the States.” Scott v. Sanford, 60 U.S. 393, 527 (1856).

The Court promised to still protect minority voting rights after Shelby County, but in its latest racial gerrymandering case—Abbott v. Perez, 585 U.S. __ (2018)—it found no discriminatory intent in Texas’s Congressional map that jammed all of the Latinos from San Antonio and Austin into the same district. As professor Rick Hasan wrote:

In Abbott, the Roberts court on a 5–4 vote eschewed the judicial minimalism it has used to avoid other contentious issues — such as partisan gerrymandering and the clash between anti-discrimination laws and religious liberties — to contort rules limiting its own jurisdiction so that it could give states like Texas freer rein for repression of minority voting rights.

Throughout the past decade, the Court’s conservative block has proven that it does not have a consistent judicial ideology. It is not consistent in support of judicial restraint, free speech, anti-discrimination law, or strict adherence to plain meaning or doctrine. The only consistency this group has shown is its adherence to Republican policy interests (or perhaps its adherence to the “Lochner-type” analysis that the Court supposedly abandoned a century ago).

From that inconsistency comes an implied lack of good-faith analysis. To be clear, “good faith” is not the same as “good.” I think the conservative fight against “substantive due process”—the doctrine that protects gay marriage, sexual intimacy, birth control, and abortion—is destructive and possibly the biggest danger we face in safeguarding the most fundamental freedoms afforded by the Constitution. I will vigorously fight against conservatives on that issue, but I don’t think they’re arguing in bad faith—I just think they’re wrong. And we can have a legitimate democracy, with legitimate judicial view, regardless of who among us is wrong.

The Court’s recent decisions are of a different breed. There is no rational debate to be had on how the Constitution should apply to our society, because the conservative justices don’t consistently apply the Constitution. You can have legitimate Constitutional arguments when both sides are acting in good faith. But there is no debate to be had when one side won’t engage in a discussion with consistent principles, and simply engages in bad-faith misdirection in order to implement its policy principles. That’s simply an unchecked, tyrannical majority implementing the unconstitutional will of the majority it’s supposed to keep in line.

If the Court continues down this road, then we’re heading toward an era in which liberals will not respect its legitimacy. People on the left are already calling for the next Democrat to pack the court. That threat last occurred in the Lochner era, before conservatives finally caved.

If the Court doesn’t make a good-faith effort to consistently apply Constitutional ideals, there is no reason for an oppressed minority or their allies to take the Court seriously. People will fight like hell—perhaps even more than they should—to achieve reforms within existing institutions, but they can only do that as long as the institution has the ability to accept their reforms. The last decade of decisions suggests that even when oppressed populations try to reform the system in the way the system has designated, they’re unfairly turned away for no consistently-identifiable reason.

The Supreme Court has an important role to play in American life, and enough Americans recognize that as often as they might disagree with it, the best recourse is to change the jurisprudence within the current system. But if the system looks rigged, the Court can’t expect the “discrete and insular minorities” it’s supposed to protect to continue to recognize its legitimacy.



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