Nick Grossman isn’t prone to hysteria, so his dot connection at Arc Digital was concerning. But then, Nick also isn’t a lawyer and sees law through the same eyes as most people, devoid of nuance, the rationale for the rules and an understanding of how and why we got where we are and we stay where we are. Or not.
He began, as so many do these days, with the Supreme Court’s shadow docket decision in Whole Woman’s Health v. Jackson, the Texas SB 8 case, denying injunctive relief, relief which I argued should have been granted despite the structural problems with the parties and the limits of equitable remedies. But Nick didn’t see any of that.
To allow Texas to ban abortion after six weeks of pregnancy, five Supreme Court justices decided to play dumb. The ban would be clearly unconstitutional if enforced by the state, so instead Texas empowered private citizens to enforce it via lawsuits, and created financial incentives to encourage them. Justices Breyer, Roberts, Sotomayor, and Kagan figured out this obvious attempt to circumvent the Constitution, but Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett claimed not to.
Those five justices say the law’s novel enforcement methods raise complex legal questions, too much for the Supreme Court to rule on quickly. Conservative lawyers, such as EPPC’s Antonin Scalia Chair in Constitutional Studies Ed Whelan, have lined up in defense of the court’s “procedural” decision.
Years ago, the hope was that the internet would democratize the law, enable anyone to have access to statutes and caselaw so they could understand something as critical to our lives as law just like a lawyer. In a way it happened, thought not necessarily a good way.
Had the case been about pretty much any other legal issue than abortion, the refusal to enjoin not only wouldn’t have been controversial, but would likely have been unanimous. It was a technically correct decision. But the volatility of abortion as a legal issue in general overwhelmed the “procedural” (put in scare quotes, as Nick did, because process is scary). Legal pundits prone to hysteria, not to mention flagrant dishonesty, have twisted the understanding of non-lawyers like Nick as to what happened and why.
Did the five justices who voted to deny the injunction decide to “play dumb” even though the law was “clearly unconstitutional”? Did they fail to enjoin because the “complex legal questions” were too hard for the Court to rule quickly? Did they not grasp, as did the liberal wing of the Court, even though Justice Breyer is now a pariah for refusing to retire upon demand so he can be replaced with a justice whose decisions will be reliably correct to progressives, that this was an effort to circumvent the Constitution?
No. None of this is remotely accurate, even though this is the story being told to non-lawyers who lack the legal acumen to realize they’ve been manipulated to believe nonsense. Maybe Nick bought it. Maybe he came to this conclusion on his own. Whichever way he got there, it’s an objectively false claim of the decision, demonstrating a gross misunderstanding of the rationale for the ruling. This does not mean the ruling was right or good, but it was not what Nick thinks it is.
The irony here is that this Supreme Court, which we’re reliably told was going to turn the nation into a theocracy and women into handmaidens, has done a fairly decent job of judging. They rejected the ridiculous Trump election suits. They kinda redefined “sex” to bring gender orientation and identity into the fold of Title VII. But these rulings are spun as distractions rather than, you know, rulings, to calm us before the inevitable sky falls. And fall it will, we’re authoritatively told. Any day now. Any day. Annny daaaaayyyyy.
Nick accused me of having an idealized image of judges and lawyers, and to some extent, he’s right. If the Supreme Court is nothing more than partisan hacks using their bench as cover to push their political agenda and subvert the law and Constitution, then our form of government fails. As the Least Dangerous Branch, their only weapon is public trust. Without the Court, we have no check and balance on the power grab of the other branches, not that anyone fears that Congress or the President would ever violate the Constitution to achieve its ends, right?
Based upon this cynical, and substantively false, understanding of the interim ruling on SB 8, Nick takes an Olympian leap to a fear that the Supreme Court will be Trump’s, or at least the GOP’s, servant in overturning the next election.
Theories of a renegade Supreme Court conniving to become a handmaid to authoritarianism are overblown. But five justices just showed that, if they like a policy outcome and can find a legal pretext for it, they’ll allow states to trick their way around constitutional restrictions.
The Texas abortion ruling shows that, if the Supreme Court majority can find a way to rationalize putting a thumb on the electoral scale, they might very well do it.
When the Supreme Court rules the way you want, they’re okay, at least for the moment. When they don’t, they’re handmaids to conservative catastrophe. And if so, then they fail to fulfill their constitutional purpose, forsake their integrity and their decisions are worthless political pandering. If so, who needs a court at all? Pull out the guns and last person standing rules.
Nick’s ultimate point, that justices’ bias can push them to rationalize why a bad result is the right result, is undoubtedly correct, and correct for any judge and any court ever. But I refuse to get to the cynical prediction of the demise of democracy by grossly misstating a Supreme Court ruling and then making outlandish leaps of fear.
When people show excessive faith in the infallibility of the Court, I challenge it. When people show excessive cynicism in the nefarious motives of the Court, I challenge it as well. You may say I’m a dreamer, but otherwise our system of government cannot survive. Nick may be right, but it won’t be because of flagrantly false characterizations of rulings and wildly pessimistic assumptions about the irresistible political bias of the justices.