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The Supreme Court and the Crisis of Legitimacy

by Peter Galbraith

Aug 31, 2022 | Politics

Brandon Bourdages

Alexander Hamilton once described the judiciary as the least dangerous branch of government. But today it is no exaggeration to say that the Supreme Court poses a greater threat to individual freedoms, to the future of the planet, and to democracy itself than any other government branch. 

The Supreme Court is now a political entity masquerading as a judicial body. This has been obvious since the 2000 decision in Bush v. Gore. On December 9, 2000, Justice Antonin Scalia, speaking for four Republican court members, ordered Florida to stay its recount of votes in the presidential race. Scalia then waited until December 12 before ruling that a recount was not possible because December 12 was Florida’s “safe harbor” deadline for recording presidential votes. If not for Scalia’s stay, the recount could have been completed by December 12, something the uberpartisan Scalia did not want to happen. 

Faced with identical law and facts, a real court will reach the same result regardless of the political party of the plaintiff and the defendant. We can be quite sure that the five Republican Supreme Court members who stopped the Florida recount would not have done so had Gore been slightly ahead of Bush. As we move into the 2024 election cycle, government officials must be prepared to ignore partisan decisions from an entity that is a court in name only. The future of American democracy is at stake. 

Other court decisions are threatening to constitutional government. In overturning Roe v. Wade (in Dobbs v. Jackson Women’s Health Organization), the Supreme Court for the first time took away a previously recognized constitutional right, in this instance declaring that the previous right to an abortion no longer exists. Despite Justice Samuel Alito’s assertion that the decision should not be read as affecting other rights, there can be no doubt that the right to same-sex marriage is in the court’s crosshairs. And since overturning Roe still leaves abortion legal in large parts of the country (it is popular even in archconservative states like Kansas), the court’s next steps will likely hold up prohibitions on travel for abortions and, perhaps, ultimately outlaw abortion altogether by declaring a fetus to be a person. 

Despite the passage of President Biden’s climate-control bill, the justices have already reached environmental decisions aimed at making it impossible for the United States to address the existential threat of climate change.

Next year, the court will rule on a case that involves the so-called independent state legislature doctrine. Based on the text and supposed original intent of two articles of the Constitution related to congressional and presidential elections, this once fringe doctrine asserts that legislatures are uniquely empowered to decide congressional redistricting and the method for selecting presidential electors. Under this doctrine, state legislatures can ignore state courts and constitutions on congressional redistricting and, more ominously, ignore the popular vote in their states when it comes to choosing presidential electors. 

Four Republican Supreme Court members have agreed to take this case, and three (Thomas, Alito, and Gorsuch) have already signaled their support for the doctrine. Their motives are obviously partisan. Republicans control both houses of 30 state legislatures, while the Democrats control just 17, and will clearly benefit from unchecked state legislature gerrymandering. Republicans control the legislatures in the five Biden states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin—where Republican members of Congress voted on January 6, 2021, to throw out the results of the popular vote. One would have to be very naive to believe that the six Republicans on the Supreme Court would have much interest in the independent state legislature doctrine if Democrats were the principal beneficiaries of unchecked gerrymandering or if Democrats controlled legislatures in states the Republican presidential candidate might carry. Had the independent state legislature doctrine been law in 2020, Donald Trump likely would be president today.

So how should the Biden administration, congressional Democrats, state governors, state judges, and lower federal courts respond to what may be a dire threat to American democracy? Alexander Hamilton described the judiciary as the least dangerous branch of government because it commands no army and no police. It has no ability to enforce its decisions except to the extent that the other branches accept the decisions as legitimate. The decisions of a court that is nakedly partisan, that is intent on taking away previously protected constitutional rights, and that is on the verge of ending free elections cannot be considered legitimate.

Even if the court had the requisite constitutional authority, one branch of government cannot be allowed to destroy the democratic basis of the other two branches, nor can it be allowed to destroy the federal system by imposing illegitimate decisions on state governments. But even using the logic of the court’s Republican majority, the court does not in fact have the authority to do much of what it reaches to do.

In his decision in Dobbs, Samuel Alito asserts that there is no right to abortion in the Constitution and therefore the 50-year precedent of Roe v. Wade must be overturned. But judicial review of laws is also not in the Constitution. The Constitution says nothing that gives the Supreme Court the power to rule on the constitutionality of laws passed by Congress, on the constitutionality of executive branch actions, or on the constitutionality of state government actions. Nor is there any evidence that the Philadelphia delegates to the Constitutional Convention intended for the Supreme Court to be a constitutional court. In fact, it is not clear that they thought much about judicial power at all in that hot summer in Philadelphia, and the jurisdiction of the Supreme Court in Article 3 of the Constitution is very limited. (Later, as part of the case for ratification, Alexander Hamilton argued in Federalist 78 that, in the event of a conflict of law between the Constitution and an ordinary law, courts would have to choose the Constitution; but this is not the same as conferring on the Supreme Court the power to overturn a law.)

The Supreme Court arrogated to itself the power of constitutional review in the 1803 decision in Marbury v. Madison. In that decision, Justice John Marshall ruled that American courts have the power to strike down laws that they find violate the Constitution. While Marbury v. Madison is a longer-lasting precedent than Roe v. Wade, it has no greater constitutional authority. Neither abortion nor judicial review are in the Constitution.  

The best solution to the problem of an illegitimate Supreme Court is to reform it. Ideally, there would be a nonpolitical way to choose justices (as in Europe) so that they are judges and not politicians. Short of that, there could be a system of staggered term limits so that presidents of both parties would be able to choose justices. However, these reforms can only be made by amending the Constitution, and securing the votes to do that—two-thirds of both houses of Congress and three-fourths of the state legislatures—is impossible to achieve.

There are two possible legislative solutions—increasing the court membership and stripping the court of some of its jurisdiction. Expanding the court—which might be best described as “court unpacking” to undo the Republican right’s court packing—is the simplest reform, but it requires larger Democratic majorities than currently exist in either house of Congress. Jurisdiction stripping—for example taking away the court’s power to review certain federal or state laws—is more complicated and solves only part of the problem. As with court unpacking, the congressional votes aren’t there.

Executive branch officials, state governors, and state courts can simply refuse to enforce judgments that follow from the decisions of an illegitimate court. For example, in abortion cases, they can decline to recognize civil awards pursuant to laws like the one in Texas that permits suits against anyone assisting an abortion. Where abortion is criminalized, federal and state officials can simply not extradite those criminally charged. Prosecutors in states where abortion is illegal can refuse to prosecute. 

Lower federal courts and state courts can choose to ignore Supreme Court rulings that they see as partisan and illegitimate. (The history of our century might have been quite different if Florida had done so in December 2000.) Without the cooperation of state and federal officials and of state and lower federal courts, there is very little the Supreme Court can do enforce its decisions. This tactic is understandably concerning to some, as it is reminiscent of tactics white Southerners used as part of their “massive resistance” to Supreme Court desegregation decisions in the 1950s. The problem then was not the tactics but the goals for which they were used. There is a huge difference between resisting court decisions that promote equal rights and freedom and not implementing those that take away rights and end democracy. 

American legal scholars and lawyers are trained to regard Supreme Court decisions the way Catholics are meant to view papal bulls. The court can be wrong, but it is better to accept a bad decision than undermine the rule of law. To the extent that it keeps social peace, this approach has merit. However, the Constitution cannot be whatever five Republican extremists say it is.

I have spent much of my career as a diplomat working on countries that fall apart—Yugoslavia, Indonesia (East Timor), Iraq, and Afghanistan. The single most important factor in the breakup of countries—and the start of civil wars—is the justified belief by a significant part of the population that the instruments of state are being used to treat them unfairly. Can anyone seriously believe that Americans would meekly accept a Supreme Court decision to overturn a future presidential election by allowing Republican legislatures to ignore the popular vote in their state?

This is a formula for massive unrest if not outright civil war. We can hope that the 2024 elections are sufficiently decisive that such a scenario does not occur. But Joe Biden won in 2020 by more than seven million votes nationally, with a three-state margin in the Electoral College, and this did not stop Donald Trump and a majority of elected Republican members of Congress from trying to overturn the election. As we approach 2024, many of the pro-democracy Republican members of Congress have retired or been purged. Next year, a partisan Supreme Court could give the anti-democracy Republican majority the tools to succeed. 

Under the current circumstances, the best response to illegitimate and partisan court decisions is to ignore them. Refusing to acknowledge the most extreme decisions of this Supreme Court will no doubt cause confusion in the U.S. court system. However, delegitimizing a partisan Supreme Court may be necessary to help prepare for the all too possible situation where the court is integral to undoing the next election. And it may even lead the court to reconsider the consequences of its actions.  

The Constitution is not whatever the Supreme Court says it is. The court’s partisan majority cannot be allowed to use the Constitution as a vehicle to destroy American democracy. At some point, we have to take a stand for the Constitution and for democracy.

Peter W. Galbraith, a former U.S. Ambassador to Croatia and Assistant Secretary General of the United Nations in Afghanistan, is the author of The End of Iraq: How American Incompetence Created a War Without End, first published in 2006.

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