In 1857, a Supreme Court led by Roger Taney, scion of a Maryland slave-owning family, “declared on specious grounds that African Americans, enslaved or free, were not and would never be entitled to US citizenship and thus to constitutional rights and privileges.”
That decision, Dred Scott v. Sandford, the most controversial in American history, had far-reaching consequences. Taney’s intention was to settle the slavery question for good — in favor of slavery. Instead, he ensured the slavery question would be settled with guns. Also, his decision so outraged the North that it enabled Lincoln to get away with ignoring Supreme Court rulings on at least two occasions.
Gary Gerstle, a professor of American history at Cambridge University in England, argues here that our country is “at a crossroads” and “common sense suggests that America ought to reform its ancient Constitution.” I won’t go into the details of his thinking; if you’re interested, read the article.
I’m writing this piece on the day that the Supreme Court overturned Roe v. Wade, but that decision was expected, and I believe American society can weather a decision that leaves the abortion issue up to the states. Abortion, while contentious, isn’t as poisonous an issue as slavery, plus there are workarounds. (There is, however, a risk the Court might allow anti-abortion states to enforce their laws against their citizens within the boundaries of other states.)
Today, I’m focusing on something else; specifically, what Justice Clarence Thomas, whose wife actively participated in illegal efforts to overturn the 2020 election, and whose own ethics have come under fire, said:
“We should consider all of this Court’s substantive due process precedents.”
That frightening language is from his concurring opinion in the Dobbs decision that overturns Roe, and follows by one day a Supreme Court decision that says police can’t be sued for violating citizens’ Miranda rights. It threatens not only gay marriage, but also interracial marriage (see story here), and virtually all other privacy rights.
Now, it’s important that’s just one justice’s concurring language, and not the majority opinion’s language, because it may not chart the Court’s future actions.
But we can’t be sure of that. This Court has already ruled that gerrymandering, no matter how undemocratic, can’t be challenged in federal courts; and it’s also blocking states’ efforts to regulate guns at a time when gun violence is roaring out of control and — worse — organized gangs of armed men are invading election offices and state capitols with the intention of imposing their political will by force.
And I don’t think we can feel confident this Court won’t ratify a scheme similar Trump’s in which undemocratically elected legislatures could overrule voters in a future election. What is clear is the public has lost confidence in the Court; according to a recent poll, 75% of Americans don’t trust this court (see story here). The Supreme Court is now at risk of being viewed as an instrument of oppression and an active threat to our democracy.
Virtually all human societies of any scale are riven by internal divisions, and throughout most of human history, most people have found themselves ruled by force. Any time someone draws “national” boundaries that enclose a multiplicity of ethnicities, religions, tribal affiliations, and other disparate cultures, they’re creating internal conflicts, and some means of holding it all together is required, which usually is accomplished with repression and physical force.
By the time of the Dred Scott decision, a European presence and slavery had been on this continent for over 300 years. In the 70 years between the ratification of the Constitution and 1858, the North-South divide had festered, deepened, and grown more toxic. Taney may have hoped Dred Scott would, by “settling” the slavery issue, stabilize the situation, but it’s more likely he simply intended to use his power to hand a win to the pro-slavery faction.
Historians often claim the Dred Scott decision made the Civil War inevitable, and it’s frequently cited as a precipitating cause of the war. Actually, as with most things, there were multiple internal conflicts in American society at the time, and several triggering events occurred; so I think it’s more accurate to say Dred Scott contributed to the violent split between North and South, as did John Brown’s Harpers Ferry raid, the election of Lincoln, and underlying it all, the widely disparate social cultures and economies of the two regions.
But what Dred Scott and its aftermath teaches us is that the Supreme Court can aggravate our society’s internal tensions, and in at least one case, may have done so to the point of rupture. For a second time in American history, we may be approaching such a point, not because of Roe v. Wade‘s overturn per se, but because of how the Court is skewing the balance of power to an unpopular minority.
The situation is this. The Court’s majority now consists of unelected justices who are facilitating the efforts of an extremist minority to imposes its rules on an unwilling majority. For example, polls show roughly 70% of Americans support the right to abortion. But this goes way beyond abortion; the Court is now threatening a slew of rights that several generations of Americans have taken for granted.
The Supreme Court is, and always has been, a political body and should be viewed as such. Of the three major political bodies constituting our national government, it is the least democratically chosen, the least responsive to popular opinion, and the one farthest removed from public accountability. Previous Court majorities, recognizing this, have trod gingerly. But what if an aggressive and unpopular minority political faction seizes control of the Court and uses it to run roughshod over the majority? We’re now facing that prospect.
That may be what has happened. It’s difficult to defend this Court’s rulings as reasoned when it tosses aside precedent, or even consistently pro-life when it strikes down every legislative effort to control gun violence.
I’m not going to cast aspersions on the legitimacy of Trump’s 2016 election to the presidency, even though the majority of voters chose the other candidate, the Republican Party’s vast machinery of voter suppression kept others from having a say at all, there was foreign interference, dark money influence, and other imperfections in that election. All elections are imperfect, and American politics have always been messy, as politics are everywhere, under every governing system. Our system can survive only as long as we agree to live with its imperfections.
What flowed from Trump’s presidency was three Supreme Court appointments that made the Court more political and more aggressive in pursuing an unpopular political agenda. Many Americans feel this Court majority was put in place by dirty tricks — and now they feel threatened by this court, too.
The majority isn’t without remedies. Ours is a system of checks and balances. The most immediate, convenient, and effective way for a majority of citizens to reclaim control of the Supreme Court is at the ballot box. Simple majorities in the Congress, together with a supportive, is all that’s required to legislate a solution. The Supreme Court can be flipped by court-packing, or overridden with legislation. (It also, in theory, could be ignored; as President Andrew Jackson put it, “John Marshall has made his decision; now let’s see him enforce it,” although that obviously would be unhealthy for rule of law in general.)
But what if the Court’s conservatives assert they have power to overrule whatever Congress and the President might do to neutralize or limit their power? For example, by declaring court expansion or term limits for justices unconstitutional? Then what?
Clearly, there are a lot of unanswered questions about where things might go from here. What will the Court do next? Where will it stop? What if it doesn’t stop, but tries to gut our democracy, and pave the way for conservative dominance in defiance of the will of the voters? How would the American people react, and what could the majority do? What would they do?
With our country as politically polarized as it now is, could a fight over our basic form of government, and what rights we have, be resolved without violence, contrary to the experience of 1861-65? I don’t know. Human nature doesn’t change over time. But a prominent historian warned yesterday the Supreme Court may be pushing our country toward “some kind of new civil war” (see story here).
What I feel pretty sure about, though, is that a Supreme Court which treads lightly and doesn’t stray too far from majority sentiment is a court that’s easy to live with and unlikely to inflame society’s divisions — and those comfortable days now appear to be behind us for the foreseeable future.