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For judges, the end of a term on the Supreme Court usually brings a welcome vacation and out-of-town speaking engagements. This week, it seemed more like the judges were fleeing the court with a mob hot on their heels.
Six justices (and their homes) are targeted because they dared to interpret the Constitution in a way that many in the political, media and academic establishment oppose.
After the cancellation of Roe v. Wade, many called for indictments, court packing, and “disciplined” judges. What is chilling, however, is that these appeals are not coming from extremist groups but from political and media figures who challenge the very “legitimacy” of the Supreme Court.
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Madisonian democracy is based on the premise that, despite our factional divisions, the Constitution creates an interest in all groups to preserve the system. Although the Constitution does not guarantee that your views will prevail in Congress or in the courts, it has proven to be the most stable and effective democratic system in history. We are all invested in this system which has achieved transformative changes over time in our laws and our society.
The Constitution is neither poetic nor pretentious in its language. It was written by Madison’s ultimate asshole. He has only one thing to recommend: we are still here. We have survived periods of war, economic collapse and social discord that have shattered other systems.
Politicians and the press have thrived under this system and have historically defended its legitimacy even when demanding major changes to our laws. We are now witnessing a crisis of faith with the political and media establishment declaring the highest court to be illegitimate. All because they disagree with a constitutional interpretation adopted by the majority of its members.
Senator Elizabeth Warren, D-Mass, has declared the Supreme Court illegitimate and called to pack the court to tear opinions against “widespread public opinion”.
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Rep. Alexandria Ocasio-Cortez, DN.Y., even questioned the value of the institution: “How much does the current structure benefit us? And I don’t think it does.” She has now sought the removal of Justices Kavanaugh and Gorsuch based on the entirely false claim that they lied under oath during their confirmation hearings. After the Dobbs ruling, Ocasio-Cortez demanded “there be consequences” for the Court.
Other leaders like Sen. Jeanne Shaheen, DN.H., issued a warning to the Supreme Court: reaffirm Roe v. Wade or face a “revolution”.
The media amplified these extreme calls. In The New York Times, columnist Jamelle Bouie wrote an overview of how Democrats could rein in the high court in an article titled “How to Discipline a Rogue Supreme Court.” He wrote that the Supreme Court does not exist above the constitutional system and added that the “rogue” court “cannot shield itself from the power of other branches.” Bouie’s Discipline understand impeach or dismiss judges as well as fill the court.
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Notably, like many others demanding sweeping changes to the Court, Bouie has previously advocated the change that is most responsible for creating the Court’s current makeup. Like many liberals, Bouie demanded that the Senate overturn the filibuster rule for Supreme Court nominees.
At the time, some of us warned Democrats that this decision was particularly myopic and that they would regret the day they took such a stupid step. As expected, Democrats quickly found themselves in the minority without the protection of the filibuster rule and were unable to block candidates. They gained relatively little from the change considering what they lost, ultimately including Roe v. Wade.
Rather than admit that their previous filibuster attack backfired, the Liberals are now demanding even more sweeping moves like a bad Vegas player who keeps doubling down in hopes of winning a hand.
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Never mind that the Court is not as rigidly ideological or dysfunctionally divided as is commonly claimed. On the contrary, it showed fewer splits in most cases.
Prior to the notice, ABC admitted that “67% of the court’s opinions in cases argued during the term ending this month were unanimous or near unanimous with only one judge dissenting. That compares to just 46% unanimous or near-unanimous decisions in the 2019 term and the average unanimous decision rate of 48% over the past decade.”
Yet after the Dobbs decision, ABC legal analyst Terry Moran described the term as a “new era” of “militant court.”
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This crisis of faith is evident in other key constituencies of our system, including our law schools. Law professors like Berkeley Dean Erwin Chemerinksy have called the judges “partisan hackers” while others have backed the targeting of individual judges at their homes. Georgetown law professor Josh Chafetz said “when the mob is right, some (but not all!) more aggressive tactics are warranted.”
More recently, University of California Hastings College of the Law Dean and Chancellor David Faigman questioned the Court’s legitimacy after the ruling in Dobbs v. Jackson Women’s Health Organization. Writing in an official capacity, Faigman went so far as to assert that “this ruling dates back not just to 1973, but to a century when women were denied the vote and were, in large part, treated as property… the world today is so much less generous and inclusive than yesterday. I tremble for my granddaughters.” Faigman said “the Court itself, which is a product of political gerrymandering – raises fundamental questions about the legitimacy of the Court itself”.
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From Congress to the press to academia, the very foundation of the Court is being questioned. What is remarkable is that these are also the voices of some of the most powerful figures in our society. Rather than seeking to moderate the crowd, they are fueling the rage with such reckless rhetoric.
There are good faith objections to this decision, but these objections challenge the legitimacy of the operation, not the institution itself. As Benjamin Franklin noted “The American Constitution does not guarantee happiness, only its pursuit. You must make it up yourself.”
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