[T]he Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.
The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.
This week MSNBC’s Joe Scarborough made this observation about the tone of Alito’s opinion, and as reported by Travis Gettys for Raw Story, he is 100% correct:
“[M]ore than any Supreme Court decision I've ever read, it was -- even the language, there was a violence to the reasoning. We win, you lose. We're taking away these rights, and there's nothing you can do about it. Please, if somebody disagrees with me, please let me know where a court has overruled a right that's been in place for 50 years and done so in such an aggressive manner with absolutely no grace and absolutely no outreach to their legal or ideological opponents."
If that doesn’t signify something gone terribly awry with this so-called Court, then nothing ever will. But here we are, in the space of a brief weekend, waking up to half the country’s legislatures furiously engaged in the process of transforming all girls, women and anyone who ever becomes pregnant into permanent second-class citizens, saddled with less autonomy and freedom than any of their male counterparts for the rest of their lives. And most of us witnessing this travesty are still numb with disbelief.
It’s no wonder that many of our European and other Western counterparts reacted with horror to the decision. Witnessing what was once --tacitly, at least — accepted as the beacon of democracy succumb to theocratic-inspired madness and misogyny imposed by this sharia-like edict of its judicial system has probably permanently consigned us in the minds of most developed Western countries as a nation in irreversible decline. America has proved its exceptionalism: It’s now an exceptionally telling example of how corruption in so-called “democratic” government can affect the real lives of ordinary citizens in terrifying ways. The fact that this outrage is not simply an anomaly but appears to be simply a harbinger of even further intrusions and degradation into American lives suggests that the grand American Experiment has failed and is ready to be stuck with the proverbial fork.
But back to the Court itself. As Peter Coy, writing for the New York Times, explains, that august body necessarily operates on a presumption of fairness. Unlike the Executive or legislative branches, for whom ideology and partisanship may be expected, the descent of a supposed neutral branch of government into rank ideological triumphalism spells doom for its legitimacy in the eyes of the people it supposed to be serving.
As Coy writes:
That’s why the politicization of the U.S. Supreme Court is so alarming. People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for the high court, and for American democracy in general.
“The Supreme Court has no power to enforce its decisions,” Daniel Epps, a law professor at Washington University in St. Louis, told me on Friday. “It doesn’t have an army. The only thing it has power to do is write PDFs and put them up on its website.”
All the Supreme Court really has to go on is the public’s acceptance of its rulings as legitimate. “Once you lose that, it’s not really clear what the stopping point is,” Epps said...[.]
Let’s help Professor Epps out here. Once the Court’s pronouncements and the Court itself are perceived as illegitimate by the majority of Americans, the stopping point is first defiance, and then, outright disobedience. Where that may lead this country is unknown. But by selling itself out so blatantly and callously to the rabid right, this Court has invited that response.
As the saying goes, “you break it, you bought it.”
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