The Supreme Court's power depends on its legitimacy. It has given that away.
In "The March of Folly" Barbara Tuchman defines folly as the tendency of governments to act against their own self-interest. To qualify as folly it must have been perceived as folly in its own time (see the comments to this post), have a feasible alternative course of action (given the ferociously unstoppable organization of the Republican Party and the utter inability of the Democratic Party to focus on anything, I'm not sure an effective one exists today), and the policy must have been that of a group and not an individual leader (the Republicans have both and I would say two of the latter, Trump and McConnell). The US has been called down and out more than once in our past and maybe we'll rally this time, too, but I am not hopeful.
And then just to put a cherry on my we're-all-going-to-hell-together-here cake, I recommend a series of books written by an SF writer named F.M. Busby (his Bran Tregare series), who imagined the existence of a future US taken over entirely by corporate interests. It ain't pretty, and it's looking more than a little prescient now.
Excellent piece - though I didn't have the heart to read it till today. As these latest decisions show. Trump didn't have to overturn the election to stay in power. We are still in the Trump era, and on certain questions we may be just at the beginning of what will be his legacy.
Terriffic analysis, Jim. Right up there with Greenhouse and Liptak today. Could there have been a worse time, given the chaotically polarized state of the country, for the SP to tackle Roe and guns.? Your remedies are right on but what chance, given the tyranny of the minority? Fate is indeed in the saddle, riding man. I am 85 and never thought I would end up worried about the future of our country . . . and my eight grandchildren.
“ systematic rule by a minority,”
When I was growing up in the 70’s and early 80’s the phrase “minority rule” was often accompanied by “armed resistance to”. Couple that with the weakening of gun control by the Supreme Court and, well, I wonder if anyone in the GOP has any awareness of recent history.
for Deanna from Diana :) "With help from SCOTUS and the GOP, American democracy is going to hell and we can't seem to figure out how to stop it." The answer is to have a Voting Holiday, turn out the Vote. With the Vote, the people can make things change.
Most Americans now do not participate because they never had civic classes, never went with their high school to see the Town Selectmen and women doing their work at Town Hall. They don't know how the system works
Fortunately, many local Democratic offices and groups like Indivisible offer positive change. https://indivisible.org
The students in the 1960's and 1970's caused change with large, nonviolent protests, then with work on social change like anti-poverty programs. We stopped the Vietnam War and made the corrupt President resign. A lot of people went to jail when Congress had to act because student protests across the country shut down the economy and worried the parents, who voted.
"Never doubt that a small group of thoughtful, committed individuals can change the world. In fact, it's the only thing that ever has." Margaret Mead
"Gonna say it again: A country of bored middle-class narcissists who yearn for some sort of dramatic crusade to give meaning to their empty lives." Tom NIchols, on concealed gun carry topic
“All that was needed was an unending series of victories over your own memory.” George Orwell 1984
To put your "imbalance of the Senate" and sudden relevance of the Electoral College in another light.
California has a population of 39.8 million and two Democratic senators. The 15 smallest states with two Republican Senators (Wyoming, Alaska, North Dakota, South Dakota, Idaho, Nebraska, Kansas, Mississippi, Arkansas, Utah, Iowa, Oklahoma, Kentucky, Louisiana and Alabama) have a population of 40.3 million.
I like your suggestions and i want to add one more - democratic congressional leaders bear some culpability here. You often make the point that "in any other field, Donald Trump would be disqualified." I don't know that Pelosi and Schumer could've done more - but in any other field, such a resounding defeat would lead to the Head Coach being fired, especially if he's not a rookie.
The fact that in the last decade they've been so thoroughly outmaneuvered on the biggest questions of the era that have considerable majority support - voting rights, individual autonomy, anti racism, gun control, climate change - and have seen all of those measures either stuck in the status quo or reversed, can only be described as failure.
Yes to all the points you've made - i don't know how they could've gotten around the way the opposition has hacked the system to rule by minority fiat - but nevertheless, they have failed. It may just be symbolic, but I think a changing of the guard is needed. Being preached to "don't get mad, get to the polls" is getting disheartening.
My world needs you, including whatever answers you have to offer. Really, it comforts me to know some among us are willing to contemplate what is happening, -- thus absolutely removing inevitability, according to Marshall McLuhan. I wonder whether I would still love McLuhan's THE MEDIUM IS THE MESSAGE; maybe. I do know I still love the promise of an alternative to succumbing to inevitability.
Excellent analysis Jim. This is a radical Court, not a conservative one. It is akin to Taney's Court, which sought to institutionalize the expansion of slavery for the sake of the Southern slaveocracy, which had lost its majority in Congress and was using the Court just as it is being used now (at the behest of the Greater South). As bad as the reversal of Roe is, at least it is now up to state legislatures, which can be influenced by the electorate. I am even more appalled by the gun ruling, which takes away from states the ability to regulate weapons. So much for my own confidence that at least here in Massachusetts we could maintain control over such issues. Calhoun's Nullification doctrine is beginning to look like an option....
But honestly, I think we are coming to a time where some states will refuse to obey the judgements of the Court and Federal government. Massachusetts. California and New England come to mind first.
A suggestion on any move to expand SCOTUS. This should be framed more broadly - we need to expand the federal judiciary. The size of SCOTUS and the duties of individual justices vis à vis the Circuit courts would be adjusted for the resulting enlargements. And perhaps we could address judicial ethics at the same time, no matter how distasteful the prospect would be for the Chief Justice. His current lack of system is self-evidently a failure. We shouldn’t leave Congressional impeachment as the only rule-making and enforcement tool.
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.
Thanks for the link to the NPR record on the "settled law" comments from some of the liars...oops... justices, who voted to overturn Roe. It's a federal offense, lying to Congress, right? Should DOJ put them on its nervous plate along with prosecuting the Biggest Liar of all time? Oh, no, they have to be impeached, just like they did Him, who dare not speak his name.
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.
With help from SCOTUS and the GOP, American democracy is going to hell and we can't seem to figure out how to stop it. I especially appreciated your reiteration of majority/minority rule imbalances. Eek!
I have sadly concluded that this nation will be torn apart in my lifetime by those who simply refuse to understand the spirit of the founding fathers' intentions, and actively seek to undermine those intentions for their own benefit. For the sake of my grandchildren, I hope I am wrong----but I see no evidence that the reactionary right has any interest in truth, fairness, or civil behavior.
A magnificent piece of commentary, very well thought out. One would have expected this kind of reflection to come out only weeks or months of an event. But we've been knowing about the expected outcome for some time, which has allowed Jim to prepare his thoughts in such an insightful way. The photo of Dred Scott and reference to Roger Taney are very appropriate