What happened at the Capitol on that January day was an attempted coup. What happened at the Supreme Court in June 2022 was a power grab of a different sort, driving the law far to the right in service of an agenda that most Americans don’t share.
The decisions that term were the culmination of the single-minded pursuit of a goal that united cultural conservatives, deregulatory free marketeers, anti-abortion zealots, affirmative-action opponents, and all the other disparate elements of the political right in one common aspiration: the capture of the Supreme Court. That aim made perfect sense. Although in theory many of the objectives sought by this coalition of convenience should have been achievable through politics, popular will stood in the way. Efforts to overturn Roe v. Wade by amending the Constitution had failed spectacularly; public support for the right to abortion had, in fact, increased immediately following the Court’s 1973 ruling (and has increased even more now, following Roe’s overturning in Dobbs v. Jackson Women’s Health Organization). There was little that conservatives could do to make their agenda more appealing at the ballot box. That meant getting the Court was not simply the obvious choice; it was the only choice.
This was a goal that animated the conservative movement, first in defeat and then in triumph. Triumph arrived four months into the Trump administration, when the Senate confirmed Neil Gorsuch to the Supreme Court vacancy that by previously unquestioned norms had been President Barack Obama’s to fill. A phrase began to make its way around Washington in that early Trump period, shared among mainstream Republicans who were growing anxious about the chaos emanating from the White House. “But we got Gorsuch,” they said to one another, sometimes shortening the phrase to a kind of code: “But Gorsuch.” It served as a reminder that although the new president was making them nervous, Senator Mitch McConnell’s strategy had kept the real prize in safe hands.
Bringing the country to June 2022 took more than Gorsuch, of course. It required Justice Anthony Kennedy’s replacement by Brett Kavanaugh in 2018 and Amy Coney Barrett’s confirmation to Justice Ruth Bader Ginsburg’s seat on the eve of the 2020 election—another norm-shattering McConnell feat. But although getting Gorsuch wasn’t the end, neither was it the beginning. (...)
At least one justice has openly expressed her concern. In a notable series of pointed remarks since mid-summer, Justice Elena Kagan has sounded an alarm. “If over time the Court loses all connection with the public and the public sentiment, that is a dangerous thing for democracy,” she said at a conference of federal judges in Montana. Kagan, a dissenter in Dobbs, did not explicitly mention the decision, but the reference was unmistakable. Scholars agree, warning that the gulf Dobbs opened between the public and the Court, and the majority’s blatant disregard of public sentiment, presents a serious threat to the Court’s legitimacy. “Indeed, the Dobbs decision may be the most legitimacy-threatening decision since the 1930s,” James L. Gibson, a political scientist at Washington University in St. Louis and a prominent scholar of the Court’s relationship to the public, wrote in an unpublished paper he posted on an academic website. (...)
The justices took up the case that became Dobbs because a majority was determined to change the law of abortion for the whole country, come what may. The Court has great power, but it seems to have lost any sense of its great responsibility.
What happens if the country decides that the Court is deploying its power irresponsibly, even illegitimately? There is no modern template for such a scenario. That’s why the crisis for the Court is also a crisis for political science about the Court, a fact that would be of merely professional concern were it not so illuminating of the full dimension of what has occurred.
by Linda Greenhouse, The Atlantic | Read more:
Image: Getty/The Atlantic
