There’s Nothing Supreme About the Supreme Court

The Supreme Court is on the verge of finishing out its 2023 term with a series of rulings that will dramatically reshape the civil rights landscape. This includes deciding whether religious beliefs allow business owners to ignore local and state civil rights laws in the case of 303 Creative LLC v. Elenis, and likely ruling that race cannot be used as a factor in any governmental action.

These are poised to continue the trend of reversing civil rights and making the United States less democratic in its elections. In the aftermath of upholding extreme gerrymandering in Gill v. Whitford, endorsing oligarchy in Citizens United, gutting the Voting Rights Act (VRA) in Shelby v. Holder, turning religion in to a “get out of jail free” care in Little Sisters of the Poor, and ending bodily autonomy in Dobbs v. Jackson, the public has less faith in the Supreme Court than ever, and it couldn’t come at a worse time.

The U.S. is as fractured as it was right before the Civil War, according to some experts. Laws targeting transgender people with the goal of “eradicating them from public life” are passing in half the U.S., and trans people are fleeing red states at a rate commensurate with Jews leaving Germany in the first few years of the Third Reich. Red states and Blue states are squaring off, passing laws that vow non-cooperation with each other in cases involving custody disputes, abortion, and health care for trans youth.

Life expectancy is plummeting, wealth inequality is rising, the dream of home ownership is effectively dead for most people under the age of 40. The political system is completely gridlocked by gerrymandering, non-proportional representation, and the filibuster. States are divided along the same lines as just before the Civil War: Pro-slavery states from 1860 are largely the same states curtailing human rights today, while holding the controlling votes at the Supreme Court.

This might be mitigable if the Supreme Court had an ounce of self-awareness. Instead, there is a belief among the justices on the Right that theirs is the word of God, and it can neither be questioned by mere mortals nor the people affected by their decisions. There is an arrogance in their responses to criticism, particularly by Justices Sam Alito and Clarence Thomas.

Justice Thomas is notorious for being accused of sexual harassment by Anita Hill during his confirmation hearings (other women have since come forth). His wife Ginni is a far-right agitator and conspiracy theorist who was later deeply involved in the efforts to overturn the 2020 Presidential Election and the January 6 insurrection. Not to be outdone, Justice Thomas has routinely omitted massive gifts for decades on his conflict-of-interest forms about all the goodies given to him by right-wing billionaires, including half-million-dollar junkets on private planes to private islands. Worse, his benefactor Harlan Crow appears to be a big admirer of Hitler and the Third Reich.

Then there’s Justice Alito, who does nothing to hide his ties to the Federalist Society and Leonard Leo. He has a habit of sneering at other justices in his opinions and lashing out at the public. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” His attitude that the public has no right to demand ethical and transparent behavior by members of the court, nor question their motivations even as the senior member of the bench plays footsie with a billionaire Nazi is a modern day “let them eat cake” moment.

Of course, he said this before a 2023 ProPublica article came out revealing that Republican billionaire Paul Singer paid for Alito’s expensive vacation junkets. Even worse, there was a direct conflict of interest given that the court, and Alito, have repeatedly heard cases involving Singer’s expensive business disputes. Rather than respond to ProPublica’s request for comment, Alito went directly to The Wall Street Journal Editorial Board to pen an op-ed that amounted to arguing that just because something looks corrupt, doesn’t really mean that it is.

For anyone who has served in the military, or government, this goes against everything we have ever been trained about ethics. One of the first things I was taught as a young officer is that the appearance of corruption is as bad as corruption, because it undermines faith in the system, and is prejudicial to good order, morale, and discipline. In the military, it is corrosive to the moral authority of leadership. In government, the appearance of corruption diminishes public trust, and encourages further bad behavior. 

Similarly, no one has ever explained how Justice Kavanaugh paid off $200,000 in credit card bills. Or the fact that it looks like the court and FBI swept multiple allegations of sexual assault against Kavanaugh under the rug. Or that Justice Amy Coney Barrett was installed as a justice just before the election (breaking then Senate Majority Leader Mitch McConnell’s made-up rule about no appointments in an election year) specifically because Trump wanted the Supreme Court to hand him the election regardless of how the public actually voted. Or even that Justice Barrett was literally a “handmaid” in a fundamentalist Christian cult in 2010. Or that Justice Neil Gorsuch failed to disclose he made a tidy profit from selling land nine days after he was confirmed to the chief executive of a law firm that has since argued nearly two dozen cases at the Supreme Court. There’s also the matter of appearances created by five of the nine justices having been appointed by a pair of highly unpopular Republican presidents who lost the popular vote.

Chief Justice John Roberts has only made the situation worse by taking the line that SCOTUS just calls balls and strikes, and should be accountable to no one, no matter how unethical the conduct of the justices appears to be. Instead of criticism evoking introspection, he insists that the problem is with the public. He comes across as an unimpressive cosplayer of Judge Dredd, declaring, “I am the law!” to a public that has lost all respect for him and SCOTUS. Instead of attempting to rebuild faith in the institution, he, and the rest of the conservative justices, insist that people should respect their office, regardless of anything else they do, or any appearances of impropriety.

They have grown so out of touch with the rest of the country that they fail to see themselves as we see them: like a drunk driver yelling “Don’t you know who I am!?” at the cop who pulled them over,  because of their belief that their position exempts them from any scrutiny, much less punishment.

As it stands, the public has lost faith in the court for their partisanship: They lost faith after the Dobbs v. Jackson ruling that is causing untold suffering, misery, and death for women with pregnancy complications. They’ve lost faith because of the routine appearances of impropriety and undue influence. They’ve lost faith because so many of them were put in place by Republicans who hadn’t won the popular vote, either in the Senate or the White House. They are increasingly seen as illegitimate, corrupt, and completely unconcerned with the effects of their rulings by the public at large.

Given where the rest of the U.S. is going, this is a huge problem.

States like Florida and California are squaring off for a Supreme Court showdown where only one side can be the winner. Let’s say that some red state passes a law that it’s a felony for a woman to leave the state and get an abortion elsewhere under the felony murder rule (South Carolina already considered this). The woman flees to California and receives an abortion, and now the red state is demanding extradition so she can be charged with a felony and faces life in prison or the death penalty. California law prevents the woman from being extradited, and now this ends up in the Supreme Court’s lap.

The fact that the Supreme Court has undermined its own legitimacy in the eyes of the public creates a huge internal pressure on states like California to simply say “no” if the court comes back with a ruling against them. No California governor would survive the political blowback for complying with a court order in the hypothetical case above. The problem is, such a case won’t remain hypothetical for long.

Maybe it’s access to health care for women or trans people. Maybe it’s the Fifth Circuit or a Republican administration banning birth control and the Supreme Court upholding it. Maybe it’s something else. But religiously motivated culture warriors in states like Florida and Texas have decided that since they can no longer win hearts and minds, they will simply use the tools available to them to make blue states look just like them. The Supreme Court has been stacked to give red states what they want and shown a wanton disregard for the consequences of their rulings.

A day is fast approaching when they will make a ruling so brutally unjust that a blue state politician will have no political option but to refuse to obey the court order. And when that day comes, the six conservative justices on the Supreme Court will have broken the union. They will have no one to blame but themselves for their hubris.