Is the Supreme Court gaslighting us?
The court’s caseload would be substantially lighter. Everybody can read the Constitution and would know in advance how the court would be likely to rule on any given subject. Their rulings would be predictable, and hence noncontroversial. It wouldn’t matter if a justice’s leanings are conservative or liberal. The Constitution says what it says. If it needs to change, it’s someone else’s job to change it.
George Washington University Law School Professor Jonathon Turley has posited that recent unanimous Supreme Court rulings may be the court sending a message to politicians. Facing threats to pack the Supreme Court and calls for Justice Stephen Breyer to resign, Turley believes the court is making a rare show of unity. Apparently, the logic is that if they show that they’re not ideological (I know, don’t laugh), the Democrats will understand that packing the court won’t make any difference. They’re trying to validate Chief Justice John Robert’s claim that there are no “Obama judges” or “Trump judges.”
There’s just one problem -- the Supreme Court is both political and ideological, and everyone knows it. Trying to gaslight everyone now is asking us to ignore 50 years of bad behavior. Good luck with that.
The reality is that the court is in trouble. It is no longer trusted to be unbiased. The justices are belatedly learning that a referee who isn’t faithful to the rules also lacks the authority to control the game -- as that authority is granted by the players. The justices find themselves in a predicament that was created by themselves and their predecessors.
Literal interpretation of the Constitution would have been easy and noncontroversial. It’s the philosophy that originalist justices subscribe to. Had we stayed out of the world of penumbras and emanations, most rulings would have been unanimous. After all, the document says what it says.
Instead, the court decided to go down the creative interpretation road. Either through hubris or shortsightedness, the justices granted themselves the power to find things in the Constitution that aren’t actually written in it. Their logic became mysterious and their rulings unpredictable. Creative interpretation inevitably allowed personal biases to creep into the court’s rulings.
And just like that, the justices became political players. Suddenly, the personal ideology of a Supreme Court justice became critical and appointments became contentious. That put us on the proverbial “slippery slope.”
After 50 years of creativity, the court has discovered all kinds of things hidden in the Constitution.
- A right to privacy
- A right to abortion
- A right to dignity (whatever that means)
- A right to same-sex marriage
- The federal government can regulate commerce within a state (not just between states)
- Municipalities can seize private property to give to another private party
- The federal government can order us to buy products from private companies
Because of what they can “discover” in the Constitution, the ideology of individual justices has become so important that managing the makeup of the bench has become a primary political objective. The Democrats even want to add more justices to the court (pack it) to affect its ideological leanings in their favor. Put bluntly, the players aren’t abiding by the referee anymore. They’re seeking ways to manage the referee’s biases in their favor.
The politicians want to control the Supreme Court and the population has lost respect for it. There’s even an amendment movement afoot to impose term limits on Supreme Court justices. The reality is that if justices are going to be political players, the citizenry needs a way to remove them. Yup -- the Supreme Court is in trouble, and it brought it upon itself.
If unanimous rulings are the court’s attempt to defend itself, it’s a mighty impotent way to do it. If the current nine justices demonstrate that they’ll stick together, the Democrats will just add 10 more justices to the bench. I’m sure President Asterisk can find 10 leftists who will creatively find everything the Democrats think should be included in the Constitution -- think Justice Sanders or Justice Ocasio-Cortez.
Their attempt to defend the court with this strategy will fail because they are continuing to do precisely what landed them in this predicament. They took an oath to defend the Constitution. But instead, they’re trying to defend the court. They’ve forgotten that the court’s legitimacy comes from the Constitution. Once the Constitution is rendered meaningless, so is the court, and so are they.
If the justices want to defend the Supreme Court, they need to defend the Constitution first -- and they’ve made that a most difficult task. They need to apply the Constitution as written and defer changes to the amendment process. They need to welcome opportunities to defend the Constitution -- rather than finding creative ways to avoid getting involved (hello, election 2020).
The Supreme Court justices find themselves in this fix because they’ve forgotten the first rule of holes: “When you find yourself in a hole -- stop digging.” Unfortunately, they’re still digging -- unanimously.