The fragile legitimacy of the Supreme Court


The legal landscape of the past weeks and months has prompted questions of which people and entities are legitimate interpreters and enforcers of the law and what happens when you take the law into your own hands. Mississippi and other states took the recent changes in personnel on the Supreme Court as an invitation to defy the Court’s constitutional rulings on abortion, and those states now seem likely to prevail.

…The newest conservative Justices, Brett Kavanaugh and Amy Coney Barrett, signalled no qualms about overruling Roe as wrongly decided, which would make a majority of at least five. At a time when the Court’s legitimacy appears extremely fragile, it is telling that the majority’s response to having the supremacy of the Court’s decisions defied seems to be acquiescence and approval…

Any vigilante revivalism today goes hand in hand with private citizens’ increased ability to carry guns in public. The Supreme Court is currently considering the most important gun-rights case since it held, more than a decade ago, that the Second Amendment guarantees an individual’s right to keep handguns in the home for self-defense. On November 3rd, it heard arguments challenging a New York law that allows a license for the concealed carry of handguns outside the home, but only upon a demonstration of “proper cause.” The perverse, self-fulfilling truth is that, as gun ownership has proliferated, an individual’s claim to need a gun for protection has become more plausible…

During last week’s arguments, Justice Sonia Sotomayor lamented, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”…But the point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.

Over decades, though both Right and Left have made comparatively minor shifts in composition of the Supreme Court, there has never before been an effort which in broad strokes is convened to remove precedence. In this instance, the Roe vs Wade decision which is held by the general assemblies of Left and Right in the GOUSA as expanding freedom for women to make decisions qualitatively affecting their lives. Yet another quality of life hated by what passes for the 21st Century Republican Party.

61 thoughts on “The fragile legitimacy of the Supreme Court

  1. Illegitimate authority says:

    “The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation”
    “It’s time to say it: The conservatives on the Supreme Court lied to us all”
    “They weren’t just evasive, or vague, or deceptive. They lied. They lied to Congress and to the country, claiming they either had no opinions at all about abortion, or that their beliefs were simply irrelevant to how they would rule. They would be wise and pure, unsullied by crass policy preferences, offering impeccably objective readings of the Constitution.
    It. Was. A. Lie.”

  2. Angle of repose says:

    Chief Justice John Roberts warns Supreme Court over Texas abortion law
    Roberts joined the high court’s three liberal justices in discussing the constitutionality of the Texas abortion law.
    The chief justice of the United States, John Roberts, warned Friday that the Supreme Court risks losing its own authority if it allows states to circumvent the courts as Texas did with its near-total abortion ban.
    It is a basic principle, he wrote, “that the Constitution is the ‘fundamental and paramount law of the nation,’ and ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.'” He cited as proof the landmark 1803 Marbury v. Madison case, which established the principle of judicial review, allowing the court to nullify laws that violate the Constitution.
    “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery,” he said, quoting the 1809 U.S. v. Peters case, which found that state legislatures can’t overrule federal courts. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

  3. Dieback says:

    (Fox News): “Supreme Court puts an end to pandemic of the autocrat : The American work force is now safe from the unnecessary threat of its government”
    (CNN) “How the Supreme Court rules during a pandemic shows what may happen next”
    (6/29/18) “A New Lochner Era : In the early 20th century, the Supreme Court systematically gutted regulations to favor business and attack organized labor. Those dark days have returned.”

  4. Wanna bet says:

    The Supreme Court heard oral arguments on Tuesday for a pair of cases that asked whether the government should be allowed to detain non-citizens indefinitely. Both cases center on immigrants who are detained on immigration violations and fighting for protection from deportation on the grounds that returning to their countries would put their lives in danger. It’s a legal process that could take months or years.

  5. 6 to 3 says:

    Supreme Court tees up wetlands fight that could cuff EPA
    “The Supreme Court only takes up a tiny fraction of the petitions that come before it, and the justices’ surprising decision to get involved in the Sacketts’ case could throw a wrench into EPA’s planned rulemaking defining what are “waters of the U.S.,” or WOTUS.”
    Also (11/2/21): “EPA said it is still working on new power plant carbon rules, despite a move by the Supreme Court last week that could have repercussions for the kind of regulation that would ultimately pass legal muster.
    Administrator Michael Regan said yesterday that EPA would “continue to move forward” with regulations to limit carbon emissions from coal-fired power plants, even as the justices consider the scope of authority the agency has under the Clean Air Act to promulgate such rules.”

  6. License to Steal says:

    “Supreme Court hears arguments on campaign finance law, issues statement on NPR report”
    “The Supreme Court takes up a case, brought by Ted Cruz, that could legalize bribery : Ted Cruz wants the Court to kill an important anti-corruption law.”

  7. Cracker Jackers says:

    “Supreme Court halts order requiring Alabama to redraw congressional map”
    “Justice Elena Kagan wrote in a dissenting opinion that the majority’s ruling undermines careful consideration applied by the judges below.
    “It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy,” Kagan wrote in the opinion, which was joined by the other two liberal justices.
    Alabama’s newly drawn map includes just one district in which Black voters constitute a majority out of seven total districts, despite accounting for about 27 percent of the state’s population.”

      • Panjandrum says:

        The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
        The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
        “We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
        Article includes a link to Justice Alito’s draft
        “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.”

  8. Goodness gracious says:

    Justice Clarence Thomas said Friday at an event in Dallas that the Supreme Court has been changed by the leak of a draft decision that would overturn Roe v. Wade earlier this month, calling it “tremendously bad,” according to audio obtained by Reason Magazine [link].
    Why it matters: Thomas, a conservative, said he believes the leak has damaged trust in the court and said that “we are in danger of destroying the institutions that are required for a free society.”

    In the weeks after the 2020 election, the rightwing activist Ginni Thomas – who is married to the supreme court justice Clarence Thomas – repeatedly implored Donald Trump’s chief of staff to help overturn the results, according to text messages obtained by the Washington Post and CBS News.

  9. Same-O Same-O says:

    “Clarence Thomas calls out John Roberts as Supreme Court edges closer to overturning Roe v. Wade”
    “The Supreme Court on Monday ruled in favor of Senator Ted Cruz in his challenge to a federal law that limits how political campaigns can repay candidates for money they lend their own campaigns. The ruling was the latest in a series of decisions dismantling various aspects of campaign finance regulations on First Amendment grounds.”
    “Clarence Thomas Declares War on Big Tech” “A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in.”
    “Virginia “Ginni” Thomas, the conservative activist and wife of Supreme Court Justice Clarence Thomas, pressed Arizona lawmakers after the 2020 election to set aside Joe Biden’s popular-vote victory and choose “a clean slate of Electors,” according to emails obtained by The Washington Post.”

  10. Will C. says:

    “Supreme Court Should Shut Down Latest Bid to Rewrite Elections Clause” (Brennan Center for Justice)
    “Moore v. Harper is currently on the Court’s “shadow docket,” which is increas­ingly being used to bypass normal court processes. In the case, the legis­lat­ors propose a radical rein­ter­pret­a­tion of the Consti­tu­tion known as the “inde­pend­ent state legis­lature theory” (ISLT), which has been making the rounds in conser­vat­ive legal circles. The theory is base­less. But more import­antly at this moment, the justices would be hard-pressed to find a worse vehicle than Moore to address the ISLT.
    The ISLT is based on an implaus­ible read­ing of the U.S. Consti­tu­tion’s Elec­tions Clause, which directs states to make rules for congres­sional elec­tions but also gives Congress over­rid­ing power to make entirely new elec­tion rules or alter state laws. Under this fringe theory, state legis­latures are the only state body that can regu­late congres­sional elec­tions — not governors, state judges, or even state consti­tu­tions.”

    Are state legislators legally entitled to pick the president for pretty much any reason they want and can they, in effect and in fact, decide whether or not Americans actually get to choose their president..?

  11. Hear Ye says:

    “The Supreme Court Just Said That Evidence of Innocence Is Not Enough”
    “…In its decision, written by Justice Clarence Thomas, the court ruled that a federal court, “may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state postconviction counsel.” In short, a convicted defendant, like Jones, can be held responsible and kept in prison if his state-appointed lawyer provided ineffective counsel for his appeal.
    …As Justice Sonia Sotomayor noted in her dissent, “The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.” She called the ruling “perverse” and “illogical,” which doesn’t really do justice to its utter obscenity.

  12. I'll betcha says:

    The United States Supreme Court is expected to rule soon on a case that started in New York state and could affect the ease with which people nationwide are allowed to carry [concealed] guns in public.
    The ruling is expected this court term which ends late June or early July. It will mark the first time in more than a decade that the nation’s top court will decide a major Second Amendment case.

  13. Countdown says:

    “Justice Samuel A. Alito Jr. on Tuesday put a hold on counting some challenged ballots in Pennsylvania while the Supreme Court continues to review a lower court’s decision that they be tallied.
    The administrative stay Alito issued involves a unanimous decision of a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit. It said that mail-in ballots that were received on time but lacked a required date on the outer envelope should be counted. Alito is the justice who receives emergency applications from the 3rd Circuit.”

  14. Trigger happy says:

    “Using a garbled reading of history as a crutch, the U.S. Supreme Court’s supposed textualist conservatives have just managed to codify a cartoon cutout version of the Second Amendment, obliterating New York State’s concealed carry firearm permitting system. We will mince no words: This will cost the lives of civilians and police officers, as almost anyone in New York City will now be free to carry a gun. At a time when the proliferation of weapons is already killing record numbers of Americans, the nearly absolutist right of self-defense the majority canonizes will become a right to societal suicide.”
    New York’s gun death rate is 5.3 per 100,000 people. Mississippi’s, Louisiana’s and Wyoming’s are all north of 25 per 100,000. [here in New Mexico it’s 22.7 per 100,000]

  15. Mean motive and opportunity says:

    Justice Clarence Thomas argued in a concurring opinion released on Friday that the Supreme Court “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.
    The sweeping suggestion from the current court’s longest-serving justice came in the concurring opinion he authored in response to the court’s ruling revoking the constitutional right to abortion, also released on Friday.
    In his concurring opinion, Thomas — an appointee of President George H.W. Bush — wrote that the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — referring to three cases having to do with Americans’ fundamental privacy, due process and equal protection rights.

  16. Busy be says:

    ● Supreme Court limits EPA’s power to combat climate change : The decision risks putting the U.S. further off track from President Biden’s goal of running the power grid on clean energy by 2035
    ● The Supreme Court on Thursday said it will consider what would be a radical change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.
    ● The Supreme Court declined Thursday to take a new look at how far the law should go in shielding law enforcement officials from lawsuits, especially when their actions lead to the injury or death of people in their custody.
    ● The Supreme Court said Thursday that gun cases involving restrictions in Hawaii, California, New Jersey and Maryland deserve a new look following its major decision in a gun case last week.
    In light of last week’s ruling — which said that Americans have a right to carry a gun outside the home — lower courts should take another look at several cases that had been awaiting action by the high court, the court said. Those cases include ones about high-capacity magazines, an assault weapons ban and a state law that limits who can carry a gun outside the home.

  17. Bad moon a-risin' says:

    ● “Spurred by the Supreme Court, a Nation Divides Along a Red-Blue Axis”
    ● “How the Supreme Court ruled in the major decisions of 2022” [interactive]
    ● “Did the Supreme Court Open the Door to Reviving One of Its Worst Decisions?
    Lochner v. New York, a 1905 decision on labor law, is imprinted on today’s law students as an example of bad jurisprudence. But those old days could be returning.
    ● “Et tu, Alito? Murder of stare decisis creates legal circus maximus.”
    ● “What’s Next for the Supreme Court?
    Five Republican-appointed justices are ambitious and impatient to change American law.”

  18. Yo-heave-ho says:

    (September 13, 2022): “Analysis: Supreme Court justices respond to public criticism with distance and denial”
    (September 13, 2022) ” Supreme Court Justice Amy Coney Barrett on Sunday rejected claims that decisions by the high court are driven by political views at a speech at the University of Louisville’s McConnell Center.
    “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the conservative Barrett said, according to the Louisville Courier Journal. She said the high court is defined by “judicial philosophies” instead of personal political views.”

  19. stare decisis says:

    U.S. Supreme Court Justice Elena Kagan Discusses Legitimacy of the Court in Visit to Law School (9/15/22)
    …Justice Kagan expressed the importance of the Supreme Court’s “acting like a court. A court does not have any warrant, any rightful authority to do anything else but act like a court. When the Court becomes extensions of the political process, that’s when there’s a problem. And that’s when there ought to be a problem.”

    • p/s says:

      “The rule of law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.” He added, “The rule of law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.” Attorney General Merrick Garland, at a naturalization ceremony at Ellis Island on Saturday

  20. 800-pound gorilla says:

    “Big Oil makes new bid for Supreme Court climate showdown”
    “…Local governments from Rhode Island to Hawaii are suing the oil and gas industry, claiming companies deceived consumers by lying about the effects of burning fossil fuels.
    The payout from the legal actions is potentially huge — if the municipal challengers can move the litigation past the question of whether the claims should be heard in state or federal court. Baltimore originally filed its climate liability lawsuit in 2018.
    The procedural issue in the climate cases has reached the Supreme Court once before, with the justices siding with industry in their 2021 ruling in BP v. Baltimore that said appellate judges must consider a wider range of arguments in favor of federal jurisdiction [link].
    A new string of losses for the companies at the federal level has prompted their requests for a second round of intervention by the high court.”

    • Monopoly Money says:

      The four major oil companies recently announced second quarter earnings of nearly $50 billion combined. Exxon alone reported a profit of $17.9 billion – the highest quarterly profit reported by any oil company in history – while Chevron reported $11.6 billion, Shell reported $11.47 billion, and BP reported $8.45 billion.

  21. Ipso facto says:

    “Justice Clarence Thomas on Monday agreed to temporarily freeze a lower court order requiring the testimony of Republican Sen. Lindsey Graham in front of an Atlanta-area special grand jury that is investigating efforts to overturn the 2020 presidential election in the state.
    Thomas acted alone because he has jurisdiction of the lower court that issued the original order.
    Thomas’ move is an administrative stay that was most likely issued Monday to give the Supreme Court justices more time to consider the dispute.”

    “Justice Thomas violated 28 U.S. Code § 455, requiring any “justice” to recuse when his or her “impartiality might reasonably be questioned” or his or her “spouse is known by the justice to have an interest that could be substantially affected by the outcome” (Laurence Tribe, an American legal scholar who is a University Professor Emeritus at Harvard University).

  22. Mike says:

    The Supreme Court will begin hearing oral arguments tomorrow concerning the Brackeen v. Haaland lawsuit.
    Most media reports suggest it just has to do with a white couple battling with the Navajo Nation to adopt a child whose birth mother is Navajo. But the couple’s attorneys are seeking to overturn the 1978 Indian Child Welfare Act; and if the Supreme Court decides that tribes are racial classifications, rather than political classifications, it could erode tribal sovereignty across the board.
    “It would put at risk every treaty, every property and political right and every power that Indian nations possess today,” said Robert Miller, a professor of federal Indian law at Arizona State University, tribal court judge and enrolled citizen of the Eastern Shawnee Tribe.
    “All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government,” he said. “Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”
    Why Are Right-Wing Groups Targeting a Law Aimed at Protecting Native Families?
    The Indian Child Welfare Act set out to fix generations of harm to Native kids. The Supreme Court could soon toss it aside.
    “…The custody battle for Zachary is one of three lawsuits that now form the basis of the Supreme Court case known as Brackeen v. Haaland. In all three lawsuits, non-Native foster parents wanted to adopt Native children; two of the three were ultimately successful in doing so. But the foster parents—along with the attorneys general for three states, with the backing of deep-pocketed right-wing groups like the Goldwater Institute and the Bradley Foundation—are suing the federal government and five tribes on the grounds that ICWA represents race-based discrimination and an overly intrusive federal government.”
    “As ICT reported in 2019, opposition to the ICWA has united a seemingly disparate group of organizations and interests whose ultimate goal appears to be in gaining access to Indian Country’s land and resources, including Native children. People and organizations forwarding Federalist philosophies have also joined opposition to ICWA, seeing it as an opportunity to further an agenda favoring states rights over federal policies.
    In January 2021, the Fifth U.S. Circuit Court of Appeals took the unusual step of holding a special hearing of the full court, and vacated an August 2020 decision by a three-judge panel that concluded the ICWA was not a race-based law and therefore constitutional.
    The ruling, however, found ICWA unconstitutional based on claims that the act violates the anti-commandeering doctrine included in the 10th Amendment. According to the doctrine, the federal government can’t make states adopt or enforce federal law, such as the ICWA.”

  23. manus manum lavat says:

    A former evangelical activist claimed in a letter to the Chief Justice of the United States that he knew about the outcome of a 2014 Supreme Court decision involving contraception and the Affordable Care Act by the court prior to the formal announcement, according to The New York Times.
    Rev. Rob Schenck wrote in the letter this summer to Chief Justice John Roberts, which was originally obtained by the Times, that he was informed by a wealthy political donor, Gayle Wright, about the verdict of the ruling prior to it coming out.
    According to the letter dated in June of this year but not sent until the following month, Wright had dinner with Justice Samuel Alito and his wife and spoke of the upcoming ruling at the time.
    “She suggested that in their table conversation, she might be able to learn the status of the case, something she knew I had an interest in knowing. I received a follow-up message from her notifying me she has indeed obtained the information during that visit. We spoke on the phone, and she detailed the revelation,” Schenck wrote, according to the Times.
    A source close to Schenck confirmed the letter to CNN.

  24. Justitia says:

    Amy Coney Barrett urged to step away from gay rights case because of faith affiliation
    The US supreme court justice’s history with the People of Praise raises questions about her impartiality in upcoming case
    Barrett has never publicly acknowledged her membership in the community since becoming a judge and did not disclose it during her 2020 confirmation. It was reported at the time that the People of Praise erased all mentions and photos of her from its website ahead of her meetings with lawmakers.

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