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.