Discussion about this post

User's avatar
Gary Wollberg's avatar

What is chilling, on reflection, is the realization that the moralizing majority do not seem to think that this decision, and the other due process privacy rights they surely intend to target, will not be overturned. Why go out of your way to strike down "settled law" when you must know its an unpopular thing to do? Why not be clever about it, like Justice Roberts wants to do, and slowly whittle away until there is merely a thin nubby stick of a right left? If it is unpopular then certainly it is temporary in a democracy and will ultimately be overturned. And then...it hits. The moralizing majority do not think their unpopular decision will be overturned because...they don't expect a democracy to be around to stop them.

Honestly, I have an unwell feeling deep in the pit of my stomach.

Expand full comment
Thomas L Mischler's avatar

Concerning Dobbs, Korematsu, public opinion, and the Court's legitimacy:

Korematsu (1944 case where the Supreme Court upheld transferring all West Coast citizens of Japanese descent to internment camps) has been called "one of the worst Supreme Court decisions of all time." Even Chief Justice Roberts condemned the decision in a 2018 decision. But the Court's ruling was widely supported by public opinion at the time, and it has been said that a decision in favor of Korematsu (plaintiff) would have created a constitutional crisis, threatening the Court's legitimacy. After all, the Court has zero enforcement power - it can only offer decisions, and if the other two branches of government refuse to abide by the Court's ruling, what could they do about it?

Dobbs, on the other hand, is supported by a minority of Americans, and in this case the Court is placing its legitimacy at even greater risk with its decision, rather than offering a ruling that had the effect of protecting its legitimacy as in 1944. As you point out, the ruling is an odious example of "we're doing it because we can." I'm reminded of Justice Souter's dissent in Bush v Gore, wherein the loser is "... the Nation’s confidence in the judge as an impartial guardian of the rule of law."

In the late 19th and early 20th centuries the Court stymied the growing Labor movement with the ridiculous notion that an individual worker had equal bargaining power with one entrepreneur who employed thousands. In the mid-20th century the Court was an anachronistic force that struck down several of FDR's New Deal programs - so much so that FDR was strongly urged to expand the Court, a suggestion that even then failed to gain popular support. So the Court has long been a conservative anchor that has held back progress in individual and collective rights that might otherwise have been achieved by legislation and/or executive edict.

But over time, the arc of the Court's rulings has "bent toward justice." This is the first time I know of when the opposite is true: when the Court sets the nation back a half century with a ruling that is clearly not supported by the majority. These 6 jurists have reversed the traditional role of the Court, protecting the minority from the tyranny of the majority, by promoting the tyranny of the minority over the majority. McConnell & Co. may be rejoicing that they won today's battle, but I fear they may end up losing the war - along with the rest of the nation.

Expand full comment
39 more comments...

No posts