Is congress more sacred then the Supreme Court?

Are protests against a Supreme Court decision as bad as protests against election results? Is an independent judiciary as important as the vote? Is constitutionalism as important to constitutional democracy as the will of the majority? As we’ve written about several times on this site, popular ruling parties in Poland and Hungary are bad for invoking the will of the people to (supposedly) weaken checks and balances.

But isn’t the Supreme Court the ultimate check on power in the United states? I have written about how dangerous the leak was and Biden’s and Warren’s reactions weren’t helping. Pelosi is adding fuel to the fire now speaking of how the Supreme Court is endangering families.

Is judicial independence no longer important? So many want the filibuster gone, mixed with court packing, this would mean that any party that wins the presidency, the house of representatives and half of the senate would have virtually unlimited power. No checks and balances.

Justices serving for life and a consistent court membership are currently the main source of independence. That the court became politicised couldn’t be helped as a simple majority in the senate is enough for confirmation. Republicans played their cards well in 2016, 2018 and 2020. They were patient and lucky. Trying to undo this through court-packing sets a shortcut precedent.

I have to keep asking why threatening with court packing and intimidating judges is acceptable in the USA but not Poland or Hungary? Did Bush Jr. threaten the court over Lawrence v. Texas? It overturned the precedent of Bowers didn’t it? The gay marriage decision in 2015 overturned Baker v. Nelson, a decision made just before Roe. Were protests organised by conservatives at the houses of the liberal justices? Is threatening judges different from threatening congress? Should the Supreme Court be able to demand protection from intimidation? Should not politicians in DC be doing everything to show that the (democratic) rule demands following the system also when the other party is reaping the fruits of the system?

These themes need to be addressed again and again. Unless constitutional democracy is clearly defined it will continue to become more and more of an empty word used and abused simply for political rhetoric like the term fascist, misused by the left, the right and even the centre.

But it’s truly strange. The Supreme Court reversing Roe won’t outlaw abortion at all. It just makes it a state issue that can be decided democratically by the people in each state through either their representatives or through referenda. In all states where pro-lifers are a minority abortion will remain legal.

The Supreme Court won’t enforce anti-abortion views on the majority.

Some might argue this is like segregation being decided on a state level, but there is an originalist basis for segregation being unconstitutional that doesn’t exist in the case of Roe. Justice Hugo Black was a fanatic Originalist, yet an (American sense) Liberal Originalist, instead of a Conservative one.

The Radical Republicans who had enacted the fourteenth amendment had attempted to ban segregation and actually been thwarted by the Supreme Court in the civil rights cases of 1883 arguing that the congress that had enacted the fourteenth amendment misinterpreted it.

Brown v. Board of education was a unanimous decision, same with Loving v. Virginia. There has not been a judge opposed to the decisions appointed to the court since. Probably since no president opposed to the decision was ever elected.

These is a broad societal consensus and consensus within the judiciary. Roe never acquired such a status. Roe has always been controversial and presidents opposed to it have won 6 elections since.

And more importantly, supporters of segregation didn’t claim to prevent the right to life of human beings. There was no perceived rights conflict.

And I cannot stop mentioning that some pro-lifers were civil rights advocates.

The Supreme Court will no longer enforce the Democratic Party’s pro-abortion stance across all 50 states. That’s it. Is that worth sacrificing constitutionalism over? It is merely an undoing of judicial activism. The reasoning behind this activism was criticised by Ginsburg herself. It is largely based on the substantive due process concept ironically used in favour of radical free market economics nearly a century ago.

Dred Scott was also criticised by Lincoln and others for trying to settle a political issue through blatant judicial activism. In fact, attacks on judicial activism were made by both Theodore and Franklin Roosevelt. The latter’s court packing scheme thankfully failed. But attacks on the judiciary have always been made by those who disagreed the jurisprudence of the judicial elite. But in the past, it was against judicial interference, not a refusal to continue judicial interference and even the attacks themselves were more civil and moderate. But moderation is extremely old-fashioned.

Without trust in the judiciary, there cannot be any trust in the reliability of election results either. It will just be a contest for a dictatorship. Less and less parties respect checks and balances, there is consistently less judicial restraint, respect for constitutions, a consistent doctrine of human rights, nothing but power politics.

Will democracy die or will someone de-escalate? Will there be a January 7th protest against the Supreme Court if Roe is overturned? How many buildings will burn?

Ramon Giralt

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