Last week's news about Justice Barrett fretting about the Supreme Court being seen as partisan calls to mind the old joke about a defendant on trial for murdering his parents and begging the court for mercy because he's an orphan. If you've created the mess you find yourself in, you have no one to blame but yourself.
Nevertheless, there is credence to her protest (which other justices have since echoed) that the way the Court has acted recently is not actually "partisan." After all, Republican-appointed Justice Roberts has been frequently joining the Democrat-appointed justices of late, which we wouldn't expect if political loyalties were all that were at the root of all Supreme Court actions. As Justice Barrett herself suggests, to understand what the Court has been doing of late, we need to look deeper:
“To say the court’s reasoning is flawed is different from saying the court is acting in a partisan manner,” said Barrett[.] “I think we need to evaluate what the court is doing on its own terms.”
So let's do what she suggests and evaluate the Court's actions on its own terms. Because what we'll find is even worse than partisanship.
Justice Barrett argues that what the public is seeing is merely a difference in "judicial philosophies," as if the prevalent splits among justices are but two sides of the same coin. But what we are seeing from this Court is hardly a case of the justices simply calling balls and strikes differently according to their respective vantagepoints. Instead we are seeing the majority deploy a "judicial philosophy" willing if not eager to erode the previously stalwart foundations upon which American law has historically depended. It is a philosophy of little more than legal nihilism. And it represents a profound change in the nature of the Court of enormous if not cataclysmic consequence.
Trouble has been brewing for some time now, with the majority's increasing use of its "shadow docket" to wield a heavy hand on legal questions without any meaningful opportunity for briefing or substantive argument by anyone affected. Instead of carefully weighing the pros and cons of the particular issue raised by the case before them in an open and transparent way, as the Court traditionally has on matters of such significance, they are instead making ad hoc and inconsistent procedural decisions behind the scenes, despite the fact that these sorts of decisions are having huge practical effect and impacting people's rights just as much they would in any case brought before them for their full and reasoned review.
This problematic practice culminated a few weeks ago with its rushed, unsigned, barely two-page, late-night order in Whole Women's Health v. Jackson, when the majority declined to exercise its procedural powers to stop Texas's SB8, a facially unconstitutional law that offended the Constitution in almost every way a law possibly could, from coming into force. As a result, rather than upholding the Constitution, or protecting the public from a wayward state actor, or even acting consistently with its own principles of jurisprudence, that slim majority, with only a few, ill-supported sentences, casually abdicated the Court's role as a protector of liberty and ruled instead as arbitrary, unaccountable autocrats.
There are at least two key reasons why the majority's behavior here is so deserving of such excoriation. The first relates to the specious way the majority misapplied procedural rules as convenient cover for producing substantively consequential outcomes, apparently deliberately, although even if it had been unintentionally it would still be a problem. Procedural rules exist to help ensure that justice can be meted out timely and fairly. While it's true that in this case the Supreme Court found itself in the position of having to clean up the mess caused by the Fifth Circuit's own procedural hijinks – which had abruptly, and dubiously, snatched the Texas statute away from the district court's established review process and thus made it practically impossible for it to act before the law was supposed to go into effect – the Supreme Court's astonishing refusal to take corrective action is what made this review ultimately impossible. And it did it by turning those very same procedural rules designed to help administer justice into outright obstacles obstructing it, opting instead to hide behind them with nothing more than a brief prevarication explaining why these rules somehow, and suddenly, had made it, the most powerful court in the land, unusually powerless to prevent a clearly unconstitutional law from going into effect.
In failing to act the Court also unilaterally overruled the long-standing judicial preference in American courts for preserving the status quo when there is a reasonable chance of a law potentially causing an improper injury before the matter has been able to receive appropriate review. And not only did the Court ignore that concern, but it all but invited those injuries to occur. The statute in question had basically walked up to several areas of settled precedent protecting constitutional rights and proverbially punched them all in the nose, openly daring the Supreme Court to come after it. Yet, shockingly, the majority declined to.
This refusal to defend the Court's own precedents was yet another way the majority's behavior was aberrant and destructive. Precedent is what gives the law stability, because once the Court has spoken we can all know where we stand. Sure, new cases will come up and be litigated, but the questions then will be about if and how precedent applies to the new situation. Sometimes this inquiry may result in the narrowing or limiting a precedent's reach, but precedent has historically been outright nullified only on the rarest of occasions and only when there has been a material change in the circumstances upon which the Court's reasoning had rested, like a new statute, a new Constitutional amendment (rare), or some other fundamental shift in society prompting a second look by the Court.
And even then the Court's practice has not been to simply ignore or overturn its previous rulings; rather, it would generally issue decisions to explain what holdings were being revisited, and why, so that the new decisions could take on the same weight of recognized authority the previous precedent once had. But that standard went out the window on that Thursday night when it issued the Whole Women's Health order. With this order it signaled that it is happy to cavalierly trash the Court's previous rulings, and, worse, with no explanation. While reasonable minds may disagree about the wisdom of a particular Court decision, everyone should be able to read its analysis to understand how the Court arrived at its conclusion. But there is nothing here in this order to legitimize the Court's sudden and drastic rejection of all the past precedent the statute implicated. Worse, in so rejecting it, it has told the world that we can never know what the law is, because it can change instantly, depending entirely on the majority's mood of that moment.
Such a reality is untenable. No matter what you think of the Texas statute, even if you believe in or support its policy goals, what the Supreme Court did on this Thursday night should still strike fear in your heart. Because the impact of what it did transcends any particular law or policy. Not only did it undermine its own esteem as an institution, but it made America unsustainable, a hollowed-out Potemkin Village of abandoned constitutional principle, and Americans no better off than the wretched citizens of the ancient feudal empire that inspired the story.
What happened on that Thursday night was the catastrophic undermining of not only the Court's own legitimacy but the legitimacy of the entire American legal system. It left all our laws and freedoms, and even the very adjudication of these questions, subject only to the capricious whim of the handful of people with enough power to unilaterally decree, with no argument, consideration, or any need to justify themselves, how we must live our lives. We might as well replace their black robes with crimson ermine and sit them on thrones, so at least we can all see and acknowledge the sheer unchecked power they now rule us with.
This is not how our constitutional order has worked. It is not how our constitutional order can work. Yes, courts have always had lots of power. And the Supreme Court in particular has always had an enormous amount of power to shape our legal world. But there were always apparent rules tempering this power. Which meant that such things as reason, persuasion, equitable procedure, predictable precedent, transparency, and notions of fair play could function as guiding pillars within which advocacy took place so that, win or lose, we all could believe in the justice of the result. But not anymore. With this order all those basic tenets have now been bulldozed. Even any sort of reasonable standard for injunctive relief is out the window. As Justice Kagan noted in her dissent, the Court's unconstrained behavior has become increasingly "unreasoned, inconsistent, and impossible to defend." In other words: our law has itself become lawless.
Supreme Court justices are of course human beings and therefore fallible, and the Supreme Court itself is a human institution that necessarily has to evolve as the society it serves does as well. But the concern is not that the Supreme Court may be evolving, because evolution is one thing; radically altering the operation of the Court practically overnight is another. And what the majority did can hardly be explained away as mere mistake, as in, "Oops, five justices' pens slipped and they accidentally repudiated decades if not centuries of past practice and precedent." But when even the most generous view of what happened is incompetence it severely undermines the esteem of the institution and those who inhabit it.
Nor can we say it's simply a matter of one bad decision. Bad decisions have happened before, and while it's never good when they do, as long as the system still works they can eventually be overcome. But what happened here represented a fundamental shift in the way the Court exercises its power, from one of predictable certainty to one of subjective judicial impulse, and there's no overcoming that change.
How could we? For those of us connected to the legal profession, what power would we still possess as practitioners to influence the cause of justice in this new system? What skills could we still exercise? How could we continue to play our own constitutional role in furthering justice in the courts when everything we were taught in law school about the American legal system has just suddenly been rendered moot?
Yes, life will go on for most tomorrow, and the day after, and the day after that. But for how long can we deceive ourselves that everything remains normal when the new normal is anything but? When the Supreme Court can so dramatically change our understanding of the law and the scope and dimension of our rights with little more than a snap of its fingers, how are we to live in a society predicated on the rule of law and guaranteed rights? How can we even tell ourselves that we are? We're like the coyote that has run off the cliff, and sooner or later we're going to notice that there is nothing supporting us anymore. And then where will we be?