In the span of 10 days, the Supreme Court took us back 10 decades.
The Supreme Court is the odd duck of the American government. The justices aren’t elected. There are no limits to their appointments. And upon appointment, they’re almost entirely shielded from the political process. Nine unelected jurists with lifetime appointments get to make binding, fundamental interpretations about the U.S. Constitution.
In fact, the Court’s legitimacy is built on … well, its legitimacy. It can’t actually enforce its rulings, after all. Instead, the justices have to show us their reasoning, show us that they’re above petty partisan politics. Consistent legal reasoning — applying the same approach to each case — is supposed to demonstrate over time that these are not politicians in black robes–that they are, indeed, jurists. It’s the placing of the legal process above its outcomes that is supposed to earn our trust.
But what happens when the justices betray that trust? What happens when their logic is so plainly subjugated to their ideologically preferred outcomes?
We’re about to find out.
Consider the Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the case that shattered the principle of stare decisis and upended the Court’s own precedent to strike down the right to an abortion. Justice Alito, writing for the majority, said, “It is time to heed the Constitution and return the issue of abortion to the people's elected representatives.” Alito argues this simply isn’t a matter for the federal courts to rule on, it’s a matter for the states and their elected representatives. Employing a rhetorical sleight of hand, he implies that the federal government had been usurping rights since Roe v. Wade — and that he is now “returning” rights … and robbing millions of women of theirs. He uses the garb of liberty to choke it at the throat.
But what of the fundamental argument, about the usurpation of states’ rights? That might be believable, except that literally the day before, the Court struck down a century-old New York state law requiring handgun purchasers to demonstrate their need for a firearm. So states get to decide whether or not a resident can have an abortion — but not a damn gun?
The throughline in all of this is a legal theory that attempts to give credence to it all.
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