The Arrogance of Unaccountable Power

By GENE NICHOL

Students of the US Supreme Court were enthusiastic to note Justice Amy Coney Barrett’s surprising concurring opinion in the Colorado presidential disqualification case. (Trump v. Anderson). Barrett agreed that “states lack the power to enforce Sec. 3 of the 14th Amendment against presidential candidates.” But, she concluded, “that principle is sufficient to resolve the case.” She would do no more. Barrett thus distanced herself from the majority’s broader conclusion that detailed federal legislation is required to give force to Sec. 3. Well and good.

I was taken aback, though, by another of her comments. After chastising her three concurring female colleagues for “stridency,” Barrett said: “All nine justices agree on the outcome of this case. That is the message Americans should take home.” Thanks for the pat on the head.

Maybe it’s because I grew up Catholic and even as a teenager didn’t like being told by priests, when asked about the most crushing questions of life: “You’re not meant to understand that. Don’t ask questions. I’ll tell you what you need to know.” Really?

There is an odd arrogance in members of the Supreme Court telling us what we ought to think about their opinions. Frankly, I’m not much interested in their instruction.

Justice Samuel Alito famously wrote the Dobbs opinion, overruling Roe v. Wade. He adopted a theory of constitutional review – requiring a deeply held historical tradition to validate a constitutional right – that would also do in Griswold (contraception access), Lawrence (gay sexual autonomy) and Obergefell (gay marriage). But he protested, somewhat angrily, in Dobbs that “to ensure that our decision is not misunderstood or mischaracterized, we emphasize our decision does not cast doubt on other precedents.” Take our word for it, he insisted, we adopt a rule only for abortion cases. (Some concession, that.)

Justice Brett Kavanaugh echoed the sentiment in his Dobbs concurrence. “I emphasize what the Court today states, overruling Roe does not threaten or cast doubt on those precedents.” Even if all the world, and the English language itself, suggests it does. Their claims put me in mind of Donald Trump’s rationale for believing Vladimir Putin instead of the US intelligence community about Russian interference with elections. “President Putin was extremely strong and powerful in his denial,” Trump reported.

This is the Kavanaugh who told his Senate confirmation hearing that Roe v. Wade is “settled precedent of the Supreme Court.” And, he continued, “one of the most important things to keep in mind about Roe is that it has been reconfirmed many times over the past 45 years – most pointedly in Casey v. Population Services.” It is “precedent on precedent.” Then, of course, he overruled both Roe and Casey the first chance he got. No wonder he doesn’t want his bona fides questioned.

Justice Alito has explained that us regular folk are only allowed to make limited criticisms of the most partisan Supreme Court in American history. “Everyone is free to disagree with our decisions,” he claims, “but to say the Court exhibits a lack of integrity … crosses an important line.” That’s deemed unacceptable — as they roll back vital civil liberties and intervene to protect Donald Trump’s campaign to end American democracy.

The theory of such justices, as they crush the viability of our most important judicial institution, seems to be that they made it to the high court – by hook or crook — and now the rest of us are supposed to simply accept whatever they tell us and smile. They rule, they write, we remain in thrall. Forgive me if I resist the invitation to pretend that they are actually judges.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, May 1, 2024

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