I am not a historian of the Supreme Court of the United States, but my less-informed but independently derived views of its character and conduct parallel the views of those who are expert in their opinions of its performance. Their consensus is that the Roberts Supreme Court of the United States is the worst in American history. Although I am in no position to affirm or deny this verdict, I am sure that, the worst or not, it will get worse. In its coming term, it will decide impending cases in ways detrimental to, if not destructive of, the Constitution, the rule of law, and American democracy as we know it.
All six of its Catholic-raised, Republican-appointed, conservative justices—most recently, its Trump-appointed justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh—acquired their seats on the bench by misleading the Senate in their confirmation hearings. Twenty years ago, John Roberts assured senators of his impartiality with a metaphor identifying a judge with an umpire calling balls and strikes, as if umpires are not sometimes biased against certain players or teams. Trump’s appointees: Roe v. Wade settled law, sure; respect for precedent, sure; what else, sure. Their dishonesty was a harbinger of the mendacious nature of their judicial practice.
The lying did not stop when they ascended to the bench. Clarence Thomas claimed that he had not understood the requirements for reporting gifts and, despite generous benefactors, had been free of conflict of interest. He wants us to believe that he has the intelligence and integrity for strict legal analysis of the facts and the law to reach his decisions. Samuel Alito also lied about gifts from benefactors and about knowledge that a flag used on the Right to signify an anti-government sentiment flew over both his first and second houses. Both bought and paid for.
Notwithstanding Thomas’s and Alito’s corrupt practices and dishonesty, and the fact that all other courts in the federal system have binding codes of ethics, Chief Justice John Roberts has successfully opposed the adoption of a code of ethics for SCOTUS. So this court operates without effective oversight and on its arrogant assumption that its members require no code of ethics. With Barrett, Gorsuch, and Kavanaugh tolerating the corruption of Roberts, Thomas, and Alito, SCOTUS is corrupt from the bottom to the top. Thus the character of these six judges.
Their conduct is hardly better. Previously, SCOTUS heard cases in public sessions, with both sides making their arguments about the facts and the law, and issued decisions explaining the reasoning behind them. Previously, SCOTUS made decisions on time-sensitive matters placed on the emergency docket, like a prisoner’s appeal for a stay of execution. In most cases, the court’s decisions gave guidance to federal district or appellate courts for them to decide similar cases in the future, or were self-explanatory. Currently, SCOTUS sometimes uses the emergency docket, often called the “shadow docket” because there is no public hearing and little or no explanation of a decision, to address situations which the Trump administration has labeled emergencies. But the cases have been those in which lower courts paused implementation of administration plans, like workforce reductions in government agencies or the deportation of immigrants, with no urgency except the administration’s desire to act quickly. Instead of pausing implementation until the cases can be adjudicated, SCOTUS has allowed the administration to proceed, with the stated intent to adjudicate the merits at a later date. Clearly, if the workforce is reduced or the immigrants deported, the case is essentially mooted and the damage irreversibly done. Without issuing explanations of its decisions, which often ignore or reject precedents, SCOTUS has reversed administration-restraining district and appellate court diktats in favor of the administration, and thus has left these courts without guidance to address similar matters. This conduct is contrary to tradition jurisprudence. (Warning: SCOTUS will soon extend its reckless disregard of the meaning of critical words like “emergency” to critical words like “insurrection” or “rebellion” to label peaceful protests. Generally, it will tolerate other fact-free, pejorative labeling—for example, “war zone”—in Trump’s justifications of the abusive exercise of power.)
Worst of all, SCOTUS, in its willingness, if not zeal, to overturn some politically sensitive precedents, resorts to arguments lacking cogency to advance its political views. Yet the Court’s legitimacy ultimately depends upon the cogency of its opinions—decisions reasoned on the basis of the facts and the law. I detail what is perhaps the best—here, a lengthy—example of failed cogency, namely, Alito’s 2022 opinion in Dobbs v. Jackson Women's Health Organization.
Abortion has been probably the most contentious issue since the issue of slavery. Alito’s opinion reversing a 49-year-old precedent establishing a Constitutional right, to abortion no less, coincides with a change in the political composition of SCOTUS. Lacking a cogent opinion justifying this reversal, the court confirms doubts about both its judicial independence and its political legitimacy. Indeed, Alito’s opinion is not cogent; it is sloppy, snide, and tendentious.
Alito says little about Justice Harry Blackmun’s much criticized opinion in Roe v. Wade. I said much, all different from the criticism of many others. After summarizing the history of different worldwide religious or philosophical beliefs about abortions, Blackmun dismissed them because they posed issues which he rightly said that SCOTUS did not need to decide. But, in my view, he should have concluded that abortion is a religious matter which has the protections of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” that is, that any law regulating abortions per se is an establishment of religion and a constraint on the free exercise of religion.
However defective Blackmun’s analysis, Alito’s is more so. The first substantive paragraph of his opinion reveals its flawed reasoning.
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
First, Alito’s division of those holding beliefs on abortion fails to divide them on the same principle—when life begins—; instead, he describes different groups on different grounds. As a result, the three groups are not mutually exclusive. A person can believe what “some believe,” “others feel,” and “still others think.” In fact, many people are conflicted because they have more than one of these beliefs. Alito’s muddled division reflects the complexity of the controversy over abortion but does not nothing to clarify the issues involved. Alito muddles the issue by not addressing and defining it.
Second, Alito’s selection of his Catholic belief about when life begins biases his opinion by excluding different beliefs held by others. Many Christians, and most or all Muslims believe life begins at quickening; some Christians and all Jews believe that it begins at breach. Depending on one’s religion, abortion might or might not take a “life.” Definition matters. Notably, until mid-19th century, the Catholic doctrine “ensoulment” did not define the fetus as human life until “quickening.” So Alito’s opinion rests on a recent change in Catholic doctrinal definition and excludes others’ beliefs on his tacit presumption of Catholic doctrinal superiority to (or contempt for) non-Catholic beliefs—not the basis of an opinion having constitutional legitimacy.
Badly reasoned decisions are one thing; politically motivated decisions are another. For years, SCOTUS has been constricting voting rights to favor Republicans and curtailing other civil rights to disfavor minorities, women, and members of the LGBTQ+ community. Such decisions weaken the fundamental political principles of American democracy, especially the equality of all people under the law. Example: SCOTUS’s reaction to a case opposing Trump’s executive order placing conditions on and thereby limiting birthright citizenship. SCOTUS deferred a hearing on the merits of a case, but ruled in favor of a Trump request to limit the scope of a district court’s national injunction to the area served by that court. The perversity of this ruling is clear. In cases of local import, a district court’s injunction rightly remains local. But in cases of constitutional import, a district court’s ruling is properly national because the constitution applies to all people, not only to those in the court’s district. Otherwise, district courts might differ in their rulings in such cases and thus subvert the equality of people under the law—which this SCOTUS decision does.
In Trump’s second term, SCOTUS has been determined to advance legal positions with little or no constitutional basis. One is the unitary executive, whereby the president has total control over the entire executive branch, which Trump claims includes Congressionally established independent agencies. Another is presidential immunity for all official acts, apparently even those violating the law. Results include the impoundment or selective distribution of authorized funds and the unrestricted (and locally unwanted) use of military forces in law enforcement in violation of the Posse Comitatus Act. In short, SCOTUS itself is corrupting the rule of law by decisions which curtail democratic principles and practices, and which enable the Trump administration to act as it wishes, without accountability. Under such a SCOTUS-defined regime, justice is impossible, only a pretextual cover for injustice.
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