Supreme Court Is Kindest, Bravest, Warmest, Least Partisan, Didn't Overturn Roe Court I Have Ever Known
Yesterday a sitting Supreme Court justice threw a spectacular public tantrum. With public opinion of the Court in free-fall, Justice Samuel Alito joined three of his colleagues who have felt compelled to defend the honor of the Court in the month since it allowed Texas to overrule Roe v. Wade in the middle of the night.
The Court is not a "dangerous cabal," he whined to a roomful of well-fed supporters at Notre Dame University's Kellogg Institute for International Studies.
Maybe if you constantly have to reassure the public that you're not a dangerous cabal dedicated to gutting civil liberties, you should engage in some reflection?
Haha, just kidding. Uncle Sam is going to gaslight the hell out of you, America.
"Put aside the false and inflammatory claim that we nullified Roe v. Wade. We did no such thing," he insisted, as abortion clinics in Texas close and women across the second most populous state in the union are barred from accessing the constitutionally protected health care they need.
It is "rank nonsense" to accuse the court of outlawing abortion in the middle of the night, he huffed, implying that the Court had to wait until 11:58 p.m. to issue its ruling because Texas's law was going into effect at midnight. Except the law was already in effect by the time the Court dropped its little bomb pretending to be confused about whether an abortion ban would actually stop women from getting abortions.
As law professor Steve Vladeck points out on Twitter, "Justice Alito defends the #SB8 ruling coming at 11:58 p.m. EDT because the law was set to go into effect at midnight. Except it went into effect at midnight the night *before.*"
And clearly Prof. Vladeck is living rent-free in Justice Alito's cranium as well. On Tuesday, the professor testified to the Senate Judiciary Committee on the danger of the Court's extensive use of the shadow docket for decisions with broad social and policy implications. The shadow docket consists of decisions and emergency orders issued without oral argument. Traditionally the majority of shadow docket decisions involved stays of execution, but in the past five years the conservative majority has used it to make new law as with last month's abortion ban in Texas.
"Simply put, it is no longer possible for any reasonable observer to dispute that there has been a dramatic uptick in significant, broad-impact rulings on the shadow docket in the past few years; that these rulings have been unusually divisive; that they are leading to novel forms of procedural relief from the Court; and that their substantive effects are causing significant uncertainty both in lower courts and among those government officers, lawyers, and court-watchers left to parse what, exactly, these rulings portend both for the specific policies at issue and for the broader contours of the relevant legal doctrines," Prof. Vladeck testified.
Well! Justice Alito wasn't going to take that lying down, Mister. So he marched up to the podium at a private event which was only broadcast after massive public criticism, for which no transcript was released, and for which the video was not posted online, to protest the vicious criticism of the Court as an institution which does its dirty business in secret.
This @KelloggInst tweet now leads to a "You are not authorized to access this page," and again, I think it's very g… https://t.co/8KZOzT43Hb— Jay Willis (@Jay Willis) 1633037260.0
See, it's not the Justices' fault that they're issuing so many orders without going through the bother of oral argument and full briefing. It's all down to those dastardly governors oppressing good Christians with so-called public health restrictions.
"They require us to adjudicate difficult issues," he complained, just four weeks after allowing Texas to go ahead and ban abortion because the statute in question presented "complex and novel antecedent procedural questions," and the Court couldn't possibly predict whether judges would actually be charged with enforcing the law's bounty scheme.
He even went so far as to complain about having to do so much extra work to strip away civil rights.
"These emergency applications impose additional stress on the Court," he moaned.
Who's the real victim here, Sam? Remind us again!
With absolute control of the Court, the conservative legal movement's main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn't make the proposition that the justices are free of partisanship any less ridiculous.
Amen to that.
Look, it's all shit right now with six conservative Justices. You know it, and we know it. But if there's one thing that this past month has made clear, it's that these people really care about being perceived as neutral arbiters of the law. They hear you loud and clear when you shout that they are illegitimate partisans, and adoration from the hacks at Fox is no substitute for respect from the "right" kind of people. What good is a shoutout from Tucker Carlson if half of DC takes it as a given that you've long since given up serious intellectual pursuits?
So keep making noise. It's working.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.