The Supreme Court’s “Legitimacy” Is At Stake Because Of Hack Analysis Like The Week’s “Is The Supreme Court’s Legitimacy At Stake In Its New Term?”

The current mainstream media propaganda narrative is that the new Supreme Court term that began this week is shadowed by the peril of “losing legitimacy,” a code for “not following rigged polls and angering Democrats who don’t have a SCOTUS rubber stamp any more like they did for decades.” This theme is (I would say obviously but I’ve decided I use “obviously” too often) part of the strategy, begun under Barack Obama to save his unconstitutional Affordable Care Act, to bully, intimidate and lobby the justices in what is a blatant corruption of the justice system.

“The Week’s” contributing editor Harold Maas helpfully has produced an opinion piece that serves as a useful template in considering the legitimacy of these laments about Supreme Court legitimacy. To begin with, Maas isn’t a lawyer, which explains why he doesn’t know what the hell he is talking about. He, like most of the critics of the Court he cherry-picks in his screed, seems to think that whether a judge’s decision is right or not depends on how popular it is or whether the public would rule the same way. Under this warped concept (see, I wanted to write “of course” again) Judge Caverly would have responded to Clarence Darrow’s eloquent and thoughtful plea for mercy to be shown the young thrill killing duo of Leopold and Loeb by having them hanged. There would be no Brown v. Board of Education. We would have had many more decisions like the infamous ruling in Korematsu v. United States where a liberal Court approved FDR’s internment of U.S. citizens of Japanese ancestry because the racist, panic-driven, wildly unconstitutional policy was popular.

You know: Legitimacy!

I’ve already read, just in the last few days, more than ten articles making essentially the same (bad) argument as Maas, though he makes it particularly unethically and so transparently from the perspective of a progressive partisan, which is why I admire it. Consider:

  • …the deceitful  title: “Is the Supreme Court’s legitimacy at stake in its new term?” Yes, it is, but in exactly the opposite way Maas thinks. The Supreme Court’s legitimacy will be shot when it capitulates to the mob and decides cases based on anything but what objective analysis of the law and the Constitution dictates.
  • Maas writes, “Those critiques could intensify if, as expected, the high court continues its lurch to the right this term by permitting more restrictions on abortion and fewer on guns, and relaxing the line separating church and state.” There is no “lurch to the right.” The Court was already substantially conservative in philosophy, with the “lurch” being represented primarily by the replacement of a single knee-jerk liberal Justice, Ruth Bader Ginsburg (more celebrated for her activism than her jurisprudence) with a conservative one, Amy Comey Bryant. All this did was give the Roberts court approximately the same kind of conservative majority that the Warren Court had on the liberal side for 17 years. Yes, the John Birch Society claimed that the Warren Court was packed with Communists. Today’s mainstream media is behaving like the John Birch Society. The difference is that then the mainstream media informed the public that the Birchers were nuts, which they were.
  • Maas elevates perhaps the most irresponsible thing Justice Elena Kagan has ever said to the status of “debate” when she told a partisan crowd, “It just doesn’t look like law when, you know, the new judges appointed by a new President come in and just start tossing out the old stuff.” Kagan knows the “old stuff” in question was Roe, a decision virtually no legal scholar can defend and that should have been thrown out decades earlier, and New York’s unconstitutional gun restrictions, which had been rendered unconstitutional by the Heller decision. That was no debate by Kagan, that was unethical judicial conduct.
  • Then Maas quotes CNN’s hyper-leftist Fareed Zakaria, who is also not a lawyer, that the majority has taken “actions that make the Court seem more partisan, more radical, more out of tune with the country.” The key word there is “seem” and those who make it “seem” that way are journalists with agendas. There is nothing radical about the Constitution after 250 years, and it was Roe, not Dobbs, that radically defied it. That the public doesn’t comprehend this isn’t the Court’s doing, but the fault of the failing education system and bad journalists like Fareed.

Zakaria then raises the per Democratic Big Lie that Bush v. Gore “was a nakedly partisan ruling in which conservatives, who had long championed states’ rights, suddenly discovered that the federal government had a crucial role in the 2000 election.” No, it was a brave and necessary decision that saved the United States from a constitutional crisis due to a freak election that could never be settled (the margin of victory in Florida was smaller than the margin of error). Senator Alan Simpson had predicted the result weeks earlier (and so had I), saying that the recounts and the controversies would continue until the Supreme Court stepped in and stopped them. It did, and then Democrats began using that crucial decision to begin challenging the Court’s “legitimacy” to this day.

  • As Haas’s next advocate for the illegitimacy of the Court, he taps the far, far Left voice of “The Nation,” Marxist Katrina vanden Heuvel in a Washington Post column. Surprise: she’s also not a lawyer, and shows it by accusing the Court of “using a self-selected docket of cases to advance minority rule.” Ugh. The Court has always had a “self-selected docket” because there are far more cases sent to it than it can handle. When SCOTUSdoesn’t take a case it’s still a decision: the lower court ruling stands. SCOTUS has nothing to do with “minority” or majority rule. If it were up to a majority of the public, there would be no free speech or right to a fair trial if everyone was convinced someone was guilty. But Marxists like Katrina at least claim they want “power for the People…”
  • Finally Maas finds a pundit who went to law school to quote, and it’s another extreme progressive propagandist, Ruth Marcus of the Post’s editorial board. The quality of her recent legal analysis was discussed here on Ethics Alarms. Marcus, whose columns and editorials drove me to give up the Post for the New York Times (she is that bad), actually stoops to the current Democratic Party talking point that the current SCOTUS is part of the Republican threat “to democracy itself.” Her argument: following the law and the Constitution will hurt women and minorities. This is intellectually bankrupt as well as self-contradictory: overturning Roe was an example of the Court rejecting a non-democratic resolution of the abortion issue for a democratic one. When the Court strikes down affirmative action (that is, racial discrimination in violation of law and the Constitution) as I fervently hope it will, Marcus makes it clear that she’ll regard this as an abuse of its power. You see, “legitimacy” to today’s Left means crushing democracy and the Rule of Law for “the greater good.”
  • Finally, Haas resorts to the opinion of Richard Wolf, USA’s Supreme Court reporter who never went to law school, which pretty much tells you what you need to know about USA Today. Wistfully citing what might have been if Hillary Clinton hadn’t been defeated in the Electoral College, he writes, with Maas’s approval, that there would be a 6-3 liberal majority, and Republicans “would be screaming” about the elimination of state abortion restrictions, the upholding of strict gun control laws, and the death penalty and political gerrymandering would be on the way out.

Yes, but the Republicans would not be calling for the packing of the court or challenging its “legitimacy,” because they, unlike Democrats in their current mutation, trust and respect the Constitution and our institutions even when things aren’t going their way.  That’s part of what conservatism is all about. Maas also approves of this fatuous analysis by Wolf: “If it would be wrong for a court built by Hillary Clinton to go so far left, it’s wrong for the one built by Donald Trump to go too far right.”

Wolf and Maas are relying on one fallacy to support another. The Supreme Court isn’t “wrong” to go left, right, or stay in the same place. The Supreme Court is only wrong if it pays attention to polls, lobbying, and threats.

20 thoughts on “The Supreme Court’s “Legitimacy” Is At Stake Because Of Hack Analysis Like The Week’s “Is The Supreme Court’s Legitimacy At Stake In Its New Term?”

  1. This might be a bit of a deflection…

    Something that came to mind as I read this blog post; I get the distinct feeling that the political left is wants direct Democracy across the board. Sure let’s scrap the courts and the police and just go with a public vote on guilt and punishment based on media propaganda, scrap education and simply go with indoctrination that’s voted for by the mob, scrap the electoral college and go with the most votes wins thus putting major metropolitan areas across the USA as the dominating voting block, scrap the legislatures and have the people vote on everything, make voting mandatory, etc, etc.

    There are some TV series, movies and books that take a hard look at how direct Democracy can be twisted by mob rule. One TV episode I saw relatively recently was called “Majority Rule” in the TV series The Orville.

    Sure let’s go with mob rule, what could possibly go wrong when everyone gets to vote for it, they say.

    • Thomas Jefferson wrote (and this isn’t an exact quote): Democracy is nothing more than mob rule, where fifty-one percent of the population takes away all rights and privileges of the other forty-nine percent.

      But I’m a bigger fan of this statement, attributed to Alexander Tytler (who clearly could see the future of the US even in the days of the Colonies): “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves excessive gratuities from the public treasury. From that moment on the majority always votes for the candidates promising the most benefits from the treasury, with the result that a democracy collapses over loose fiscal policy, always followed by a dictatorship.”

    • Steve W. wrote: “[T]he political left is wants direct Democracy across the board.”

      I disagree. The Left doesn’t want D/democracy at all. The Left wants the collectivist central state deciding everything where the Legislature and the Judiciary are merely rubbers stamps for Executive fiat, a la China. The politburo decides what is needed and what will be done.


  2. Amazing the way DNC talking points become editorial pieces like night passes into day and then get passed around like … I don’t know what.

  3. The news, of course, is not that there’s a crisis of legitimacy with the Supreme Court, but rather that the leftist media has gone all-in to actively campaign against its legitimacy. This represents an active threat to the Republic, far more than any ragtag group of rednecks talking smack after target practice.

    If the court ever had a crisis of legitimacy, it started in the early 20th century when lawmakers, with policy ideas that were popular at the time, really started straining against the limitations imposed by the Federal government’s enumerated powers. Amending the Constitution being so hard to do, they decided instead just to pretend that it meant whatever they wanted all along. The 2nd Amendment, when it said not to infringe the right to keep or bear arms, actually meant they were free to enact whatever gun control scheme they thought proper. But the most abused and overworked clause has got to be “to regulate commerce with foreign nations, and among the several states”. Into this clause has been read the power to regulate every aspect of all economic activity whatsoever, right down to whether a man can grow wheat for his own consumption in his backyard, or build a fence in his own woods, on account of the soil being moist. I think most people would be shocked to learn of the epic straining of legal reasoning upon which rests an enormous Jenga tower of federal bureaucracy.

    • DaveL wrote, “The news, of course, is not that there’s a crisis of legitimacy with the Supreme Court, but rather that the leftist media has gone all-in to actively campaign against its legitimacy. This represents an active threat to the Republic…”

      Spot on!!!

  4. ” It did, and then Democrats began using that crucial decision to begin challenging the Court’s “legitimacy” to this day.”

    To say nothing of deciding to begin challenging the legitimacy of Presidential elections which they have done for every Republican Presidential victory since.

  5. “To begin with, Maas isn’t a lawyer, which explains why he doesn’t know what the hell he is talking about.”
    And once again I am reminded that the legal profession is a secret cult with its own language, oaths, practices, and beliefs, a cult that is superior to any and all other groupings of people, a cult with a mindset that legal work is so complex that we noncognoscenti have no hopes ever of understanding it.
    Obviously, when it comes to anything related to the law, including opinion pieces such as Maas’, we non-lawyers should shut up. We just would not know what the hell we are talking about.

    • That is a bit disingenuous.

      What our intrepid Ethicist is saying is that the Rule of Law is more, and should be more, than what fatuous idiots like Maas thinks of the Court’s decisions. The Court does take public policy – not public sentiment – into consideration when it issues its opinions. The politics of the Court is in the selection of which Justice writes the opinion and which Justices join or not in that opinion. In that respect the Court is collegiate. Yet, Mass, et al, would have the Court check out the most recent Pew Research opinion on this issue or that issue and issue edicts consistent with those polls. That renders the Court illegitimate, not when the Court review 230 – 240 years of jurisprudence and seeks to issue opinions consistent with that history. And, yes, the Court has gotten it wrong – Plessy v. Ferguson anyone? If the critics truly believe that the Court should never undo wrongly decided cases because of precedent and stare decisis, then we would still have segregation in this nation.


      • I’m an originalist when it comes to language usage. ‘He’s not a lawyer and that is why he doesn’t know what he’s talking about.’ Simple, plain language. Easily understood. But, apparently not exactly what was meant, so additional information is needed. I did a stint as a PR guy, so, I’m familiar with the phrasing, ‘What the general meant was …’

    • Now don’t take it personally. I’m sure there are many non-lawyers who can manage to figure this suff out, but Maas, Zakaria et al. are clearly not one of them. It is, however, a discipline and a profession, so for those who haven’t studied the basics presume to do analysis and botch it, a fair preusmption is that they have mo business presuming to understand the topic.

    • Ed:

      The legal profession has its own language and practices. Agreed. Most lawyers are just trying to make a living while accomplishing their clients’ objectives and not get sued for malpractice. They could give a flying fuck what non-lawyers think of the profession. Lawyers who work as journalists are obviously a different breed of cat. Then of course, many lawyers are assholes. But that shouldn’t be a surprise given lawyers spend their lives between opponents who are either fighting or have adverse interests, actual or potential. They’re HIRED assholes. Being a lawyer changes you. I’d encourage you to go to law school. You’ll come out a different person. Even before you ever actually practice. It’s a very strange phenomenon.

      • Interesting suggestion, OB, but, that ship sailed a long time ago, and at my advanced age, I can’t swim fast enough to catch it.
        My sarcasm was a bit on the asshole side; I get that way sometimes to try to make a point, maybe stir things up a little.

    • That’s a really weird conclusion she draws from her legislative history research. The remedy embodied in the 14th Amendment seems on its face to be treating everyone equal, not treating a particular group specially. She seems to think treating black people equally requires that they be treated special. That’s verging on wishful thinking, isn’t it? Or “It is what it isn’t.”

      • She also ignores the legislative construction rule holding if the statute’s clear on its face, you don’t have to, and should not, resort to the legislative history for clarification. Because there’s nothing to clarify.

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