By Jessie Seigel / Washington, D.C.
As always, the Supreme Court’s new term began on the first Monday in October, which fell on October 3 this year. And this Court, controlled by a super-majority of six radical right-wing justices, has chosen to accept cases revisiting long-established precedents concerning affirmative action, separation of church and state, gay rights, and most important of all—voting rights.
While the Court has the power to decide which cases it will hear, in the past it has largely taken cases to resolve inconsistencies between the decisions of lower courts. In this term, however, the Court has chosen to hear cases that present no such conflicts, but merely present issues the Court wants to address: presumably, precedents the Court’s majority wants to undo.
This threat of large-scale reversals of legal precedent comes at a time when trust in the Court is at an all-time low. According to a September 29 Gallup poll, trust in the Supreme Court has dropped 20 points in the past two years. A September 22 Marquette Law School poll found it has dropped even more during that period—by 26 points. The transparently political opinions delivered by the Court’s conservative majority last summer—eviscerating abortion rights and backing the carrying of concealed weapons without a license—has led many to question whether the Court’s actions are undermining its legitimacy as an institution.
Chief Justice John Roberts Jr. has tried to dismiss the legitimacy question and justify the court’s unpopular rulings by arguing that law is not decided through a popularity contest. Speaking at a judicial conference on September 9, Roberts said: “The Court has always decided controversial cases, and decisions always have been subject to intense criticism and that is entirely appropriate.” He continued, stating that he does not understand the connection between opinions people disagree with and the legitimacy of the Court.
Roberts declared: “It is the job of the Court to say what the law is, and that role doesn't change simply because people disagree with this opinion or that opinion." He added, "You don't want the political branches telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is."
Roberts’ stance is, of course, disingenuous. Objections to the Court’s recent opinions are not based only on a dislike of the result but on the manner in which the Court’s reasoning turned law and logic inside out in order to reach the reactionary result desired. The pretense that the Court’s decisions were not transparently political has added insult to injury.
In addition, at least one Supreme Court Justice—Clarence Thomas—makes no effort to even disguise his political agenda. Despite the fact his wife, Ginni Thomas, was involved in promoting the overthrow of the 2020 election, Justice Thomas has declined to recuse himself from Trump-related January 6 insurrection cases that come before the court. In at least one, his was the sole dissent in an otherwise unanimous decision against Trump’s position.
Despite the Justice flaunting his lack of integrity, the appeal of the 11th Circuit’s determinations related to the F.B.I.’s seizure of classified documents at Trump’s Mar-a-Lago resort may be decided by Thomas alone. (The request went to Thomas because he handles emergency appeals from the 11th Circuit. According to Scotus Blog, Thomas could, as is “common in high-profile appeals, refer the request to the full Court.” But given Justice Thomas’s past behavior, I wouldn’t count on it.)
The most important cases before the Court this term will determine whether we continue to have a democracy.
In 2013, the Supreme Court’s conservative majority drove a stake through the heart of the Voting Rights Act by striking down Section 5’s requirement that certain states obtain U.S. Department of Justice approval for all changes to their voting laws and practices. The Court’s majority based its so-called justification on the premise that the Section 5 requirement was no longer needed to protect against voter suppression—a pretense that anyone could see through.
In her dissent, Justice Ruth Bader Ginsburg equated the elimination of the requirement to “throwing away your umbrella in a rainstorm because you are not getting wet.” The majority’s overturning of Section 5 gave Republican controlled legislatures around the country the freedom to pass laws suppressing the vote of those who might oppose them.
Already this term, the even more right-wing majority has chosen to take up the decision Merrill v. Milligan, which held that Alabama’s redistricting plan limits the voting power of Black voters in violation of Section 2 of the Voting Rights Act. (Though a quarter of the population of Alabama’s population is Black, for voting purposes they were rammed into one district, making 6 out of 7 voting districts majority white.) In this case, the Court is giving itself the opportunity to hammer a final nail into the coffin of the Voting Rights Act—thus, permitting white supremacists an open field to apply voter suppression throughout the nation.
As if that were not bad enough, the court’s supermajority has also chosen to consider a case in which the North Carolina Supreme Court determined that the state’s redistricting plan violates North Carolina’s constitution.
The Supreme Court may use a fabricated theory called the independent state legislature doctrine to support an opinion that a state supreme court cannot overrule a state legislature’s redistricting plans—the state legislature’s version of election rules—even if those rules violate the state constitution.
If the Supreme Court does so, it will be legalizing the illegal election schemes Trump and his allies in Republican-controlled state legislatures tried in 2020. Without recourse to the courts, voters will have no way to counter the resulting Republican legislative dictatorship.
MSNBC host Rachel Maddow has speculated that if trust in the court keeps dropping, you would think the justices would worry that Americans won’t respect them enough to follow the Court’s rulings any longer. Maddow opined that this loss of perceived legitimacy would be a disaster—the end of the rule of law.
Though I have great respect for Rachel Maddow, in my view, legitimacy is beside the point. Ultimately, the Court’s power does not reside in perceptions of legitimacy but in whether those holding physical power will enforce its opinions. That’s what’s happening with abortion suppression now. If the Court’s decisions in this term aid anti-democratic forces to take over the country, public perception of the Court won’t matter. The Court will merely serve as a tool lending the facade of legality to the those who have rigged the electoral system in order to obtain and hold power. The Court’s majority is clearly poised to act as an adjunct of those anti-democratic forces.
Time to save the nation’s democracy is running short. The vote, to the degree we can overcome the current gerrymandering and legislative skullduggery, is our most powerful remaining weapon. If we all vote in November, democracy may not yet be lost.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.