Saturday, September 10, 2022

Following The Election Returns

This is not the defense of the Court the Chief Justice is looking for: I suggest the Chief Justice spend time with a gynocologist facing a patient with an ectopic pregnancy and waiting until her life is "clearly" in danger before treating her condition with a medical abortion, knowing full well that "clearly" could be determined by a jury of non-doctors in a criminal trial.  And then he can talk to us about "gut-wrenching," and we can discuss the standards or legitimacy applied to outcomes we like or don't like.  Seems to me that situation alone is a pretty good basis for criticizing the legitimacy of a court which considers such circumstances a small price to pay for what they perceive to be Constitutional order.

Now:  is that a sound basis for questioning the legitimacy of an outcome I didn't like? I didn't like the outcome of Hobby Lobby (granting private companies a "religious conviction" that overrides the interests of their employees), because I thought it was a poorly reasoned decision. Yes, the better argument against Supreme Court opinions is the reasoned one. There really wasn't any excuse for the "Impeach Earl Warren" billboards (about as far as that ever got, too). OTOH, as Mr. Dooley reportedly reported, the Supreme Court follows the election results.  Which, like all such aphorisms, is subject to mis-interpretation:

In 1900, when the Republicans won a huge victory, the Supreme Court used some tortured arguments to decree that the Spanish American War victors could make people in the newly-acquired territories pay taxes. Mr. Dooley observed that “the Supreme Court follows the election returns.”

It was quoted again when the Supreme Court began ruling that Franklin Roosevelt’s New Deal programs were unconstitutional. Since the Democrats had a huge majority in Congress Roosevelt began talking about “packing the court” by naming additional justices. He didn’t do it, but suddenly the Supreme Court began to see its way clear to allow the New Deal to continue.

Both sides seem to think that the addition of Judge Amy Barrett to the court to create a six-three conservative majority will overturn Roe v Wade. The Republicans have held out the promise of such an action for decades in order to keep social conservatives in line. But you may have noticed that it hasn’t happened in 47 years.

Is there doubt the suspected outcome will not come to pass? There are reasons to think so.

The vaunted independent judiciary does not live in isolation and judges are very conscious of which way the wind blows. Remember the strained reasoning and rewriting Republican-appointed Chief Justice John Roberts did in order to save the Affordable Care Act? Roberts also took umbrage at President Trump’s description of a jurist as “an Obama judge” saying that we do not have Obama judges or Trump judges, we just have judges.

The Pew Research Center polls show that 70 percent of the American people (including 52 percent of Republicans) do not believe abortions should be outlawed. Restricted, yes. But outlawed? No.

The conservative Supreme Court will hear cases around the margins but will a straight-ahead decision that overturns a decision made 47 years ago happen? The justices are appointed for life. The prospect of forever living in infamy for a decision that flies in the face of settled law and over the objections of two-thirds of the American people may be too dire to contemplate. Roberts twisted himself in knots to save Obamacare. Will he really preside over a decision that looks back at 47 years of abortions and say “never mind?”

As with the court during Roosevelt’s era, this court has to be conscious of the Democrats talking about “packing the court.” Will the justices sit by while the Congress wreaks havoc with the highest court in the land? Or will they protect the institution they revere? Does Roberts want to preside over a squabbling 15-member mini-legislature?

Joe Biden won’t say whether he favors packing the court, but he doesn’t have to. All he has to do is leave the possibility hanging out there. Polls say he will win the election, an iffy proposition but possible. If he wins big, the Republicans could lose the Senate in a Blue Wave. The Democrats could then grant statehood to Puerto Rico and Washington, D.C., and thus add four new Democratic senators. All it takes is an act of Congress to authorize it. (As it did with Alaska and Hawaii.)

Majority Leader Mitch McConnell, in his haste to confirm Barrett, looks like a man who expects an election disaster.

I think there is reason to believe Mr. Dooley’s dictum that the Supreme Court will follow the election returns.

"The vaunted independent judiciary does not live in isolation and judges are very conscious of which way the wind blows."   Well, that still seemed arguable true; until this June.

Yeah, that opinion was written before Dobbs; and a fairly decent prediction that was shot to pieces by Justice Alito.  Threats of "court packing" did not faze them, and yes, they were quite happy to "look[] back at 47 years of abortions and say 'never mind[!]".  In fact, consider the Chief Justice's remarks as a weak attempt after the barn door was left open and the barn set ablaze, to defend it by saying at least the horse got out okay.  Does he think Congress won't wreak havoc on the highest court in the land?  Is he paying attention to the election results so far?

Because I think November is going to be the Court's wakeup call.  I just don't think they'll get it; not if Justice Thomas's concurring opinion in Dobbs is any indication.  True, the vast majority of Americans don't know if the grounds they disagree with the Court are on just outcome related or related to the shredding of stare decisis in Dobbs.  Does it matter?

I quite agree the adage of "whose ox is gored" drives all public sentiment.  Korematsu didn't affect enough people, even though there's an argument to be made that Earl Warren led the Court as he did as a penance for administering the Japanese internment camps in California.  That doesn't justify Korematsu, but then again, neither does Brown erase Plessy or Dred Scott.  The Court has one helluva lot to answer for, but so do we all.

Will the Court follow the elections returns in November?  That remains to be seen.  Trump truly unleashed a demon that we are only now shoving back into the bottle. The Supremes in their ivory bubble may, or may not, get the message.  Alito clearly thinks he did the right think, returning abortion to the states.  Will he go further and ban the Federal government from codifying Roe on the grounds of States's rights (which is what it will be no matter how he dresses it up)?  Is the Court's defense really that is know the law better than we the people, and we'd just better respect that?

I agree the law is a complex beast and reading Twitter it's especially clear most people have no clue how the legal system actually works (Bad Legal Takes alone makes you wonder what planet those people are on?  It almost makes me believe the MCU Multiverse is real, and they are writing in from some adjacent but completely different reality).  Most people, in other words, are simply incapable of criticizing Supreme Court opinions except as they approve or disapprove of the outcomes.  Then again, many people disagreed with the not guilty verdict in the OJ Simpson trial, and the republic still stands.  I, myself, was never convinced he did it, unless he did it in a hazmat suit he managed to vaporize, and do that before he got in his car and drove away.  I mean, there had to be gallons of blood at that murder scene, and he didn't have a drop on him or any of his clothing?  That's a helluva well planned crime of passion.  I'm not saying he's innocent; I'm just saying I have serious questions.

Does that call into question the entire criminal justice system?  Not as strongly as Popehat does when he inveighs against the carceral system that brutalizes and brutally punishes people.  Riker Island is a fine recent example; but there are plenty of prisons in America where you don't even want to be a visitor surrounded by four burly guards.  I'm very comfortable criticising that, and calling into question the very idea of "criminal justice."  But it's not because I know someone in jail.

I'm only indirectly affected by Dobbs, but as Donne said, no man is an island.  I think my criticisms, technical or merely outcome related, are perfectly valid.  And I think the "integrity" of the court is preserved by the Court; not by complaining about people on Twitter; or in the streets; or, this November, at the ballot box.  Removing a constitutional right, saying "Never mind!" after 50 years, is hardly the hallmark of an institution with integrity to burn.

Especially when the argument supporting it was just so damned bad.

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