The Last First Monday In October

In her typical fashion, Linda Greenhouse blames the Supreme Court for sticking its nose into the culture war just because both right and left keep passing laws, rules, regulations and mandates in their battle over the culture war that give rise to novel disputes that end up in the Supreme Court.

The most important decision the Supreme Court’s justices will make in the new term that begins on Monday transcends the questions presented in any of its many cases. It is whether the court will resume or refrain from injecting itself into the country’s culture wars.

The quiet part is Greenhouse’s hatred of the Court’s Trumpian majority ruling contrary to the way Greenhouse would have the Court rule. If the 6-3 majority was reversed, would Linda be spinning like a whirling dervish to support the Court’s finding a new substantive due process right monthly, if not sooner?

But Greenhouse’s tiresome routine aside, former Judge Nancy Gertner and Georgetown Prawf Stephen Vladick raise Greenhouse’s unspoken problem, what will happen should Trump be re-elected and the Supreme Court not rule the way he wants at any given moment?

It isn’t hard to imagine a future President Trump, returned to the Oval Office perhaps with the court’s help, thumbing his nose at the justices should they have the temerity to rule against his policies, as they often did during his first term. (For example, if the Supreme Court rules that some future executive order is unconstitutional, Mr. Trump could nevertheless illegally order law enforcement or administrative agencies to implement it.)

The Supreme Court, or the Least Dangerous Branch as Hamilton called it in Federalist 78, has only one arrow in its quiver. Respect.

Defying the Supreme Court wasn’t politically possible at that time, nor has it been an option for President Biden even as the court has blocked, or refused to unblock, a dizzying array of his domestic policy programs.

During Trump’s first term, the left was doing its best to challenge the legitimacy of the Supreme Court. With each new justice Trump appointed, the shrieks grew louder. By the end of Trump’s first term, particularly with the midnight consent of Amy Coney Barrett, the attacks were at fevered pitch. Have we already forgotten that one of Biden’s first moves was to form a commission of academics to consider Supreme Court reform. Of course it was doomed to go nowhere, as all commissions of academics do. Could it possibly get worse? Yes. Yes it could. And it did.

But the Supreme Court of 2024 is not the Supreme Court of 2017, 2018 or even 2020. It is a court that has been willing, even eager, to sweep aside decades of settled law. It overruled Roe v. Wade; ended racial preferences in college admissions; greatly expanded the Second Amendment; and kneecapped the administrative state, all in rulings that divided the justices along partisan lines. It is also a court that ignored calls for the disqualification of justices when there was the appearance, if not the reality, of conflict; and reacted to calls for meaningful ethics reform by adopting an unenforceable Code of Conduct that gives half-measures a bad name.

One might presume that such a Supreme Court would bring a tear of joy to the right as it brought a tear of anguish to the left. After all, a legitimate Supreme Court is a Court that rules the way you want it to, while an illegitimate Supreme Court is one that doesn’t. But no, that’s not good enough. Not every ruling has gone Trump’s way. Not every ruling has backed Trump’s every whim. Trump is not what one might call a gracious loser.

If Mr. Trump turns against a Supreme Court with a Republican supermajority (as his running mate, JD Vance, has proposed), who would support the court? Mr. Trump’s base? Hardly. Congress, unable to enact real reforms? Critics?

Nor are the handful of Trump sycophants who failed the sixth grade civics exam.

If this scenario sounds far-fetched, consider a real case. In January, a 5-4 majority (with Chief Justice Roberts and Justice Barrett joining the three Democratic appointees in the majority) issued an unsigned, unexplained order clearing the way for the Biden administration to continue removing razor wire that Gov. Greg Abbott of Texas had ordered to be placed along the U.S.-Mexico border. The governor had done so ostensibly to deter unauthorized border crossings, but the razor wire also hindered the ability of the Border Patrol to do its job. Within hours of the ruling, Representative Chip Roy, Republican of Texas, was on Fox News calling on Mr. Abbott to defy the Supreme Court.

While the left wing of the Democrats, and more than a few closer to center on the Democratic side, want to pack the Court with their reliable partisans, the MAGA right can’t complain that it doesn’t already have the votes. So while the left might call for reforms, the right is left to channel the spirit of Andrew Jackson and just refuse to honor any ruling that doesn’t go its way.

This point appears lost on the justices. For as much as some on the court and its public defenders may see calls for reform from people like us as a threat to the institution, continuing to act in a way that erodes whatever credibility the court has left is an even greater threat — not just to the court, but to the Republic.

The left has done immeasurable damage to the Court by its incessant claims of illegitimacy. The Court has surely not helped itself by a series of dubious rulings that fed the claims of blatant partisanship and compromised ethics. But the threat from the left is of a very different nature than the threat from the Trumpian right, which feels no need to bother with a commission or reforms when it can just blow off any ruling that falls short of Trumpian supplication and leaves The Donald to proclaim, “Chief Justice Roberts has made his ruling. Now let him enforce it.”


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4 thoughts on “The Last First Monday In October

  1. DaveL

    I must take issue with Greenhouse’s litany of “settled law” upset by the current Court. Roe v. Wade I’ll give her, but previous rulings upholding Affirmative Action were quite explicit that they must eventually expire. It seems disingenuous to call such explicitly temporary measures “settled law” and suggest there’s something radical about revisiting them.

    Likewise, there was nothing “settled” about the state of Second Amendment law, except that the right to bear arms is an individual right per Heller, and applicable to the states per MacDonald, neither of which has been upset by the current Court.

    Finally, while I concede that Chevron was “settled law”, the operation of bureaucrats since that decision has done more to upset settled law than any decision by an Article 3 judge. When bureaucrats can appoint themselves the power to decree that Public Health powers include a nationwide rent moratorium, or that rain puddles constitute “navigable waters”, at some point overturning Chevron becomes the path least injurious to “settled law.”

  2. Mike V.

    They’re worried about Trump maybe ignoring the Supreme Court? Are they equally worried that Biden has repeatedly thumbed his nose at The Court over student loans? And we had 4 years of President Trump to use as a guide to future actions. Nothing there suggested he would take the actions they fear.

    1. Tom B

      Congress passes laws regarding immigration the president ignores.
      Supreme Court makes rulings on debt forgiveness the president ignores.
      Am I the only one who thinks curtailing the power of the president is imperative?

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