Image via Matt Hrkac, Wikimedia Commons.
Late last June, in its decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court of the United States announced that the constitutional right to abortion that had been part of American law for 50 years was no more.¹ In many red states, laws criminalizing abortion suddenly came into force.
Dobbs, like all Supreme Court decisions, is scholarly in form. It has many footnotes to cases, statutes and the evidentiary record. But – also like most Supreme Court decisions, at least where there is a strong political valence to the result – you wouldn’t need to be a legal scholar to predict how each justice would vote. If you knew which justices were appointed by Republican presidents and which ones were appointed by Democrats, you would have been able to predict the result perfectly. All six Republican appointees voted to uphold the Mississippi law restricting abortion that was before them (although Chief Justice John Roberts did so on narrow grounds that would have left some room for a constitutional right to abortion). The three Democratic appointees voted against.
The question Dobbs raises is one that has bedevilled American constitutional law – and the law of countries that have copied the American model of judicial review of legislation based on a written constitution – since the beginning. Is it really even law? Or is it just politics? And if it is just politics – if, as Justice William Brennan once remarked, the only thing that matters is how to count to five – what justifies its being such unaccountable politics?
The thesis that politically salient and controversial Supreme Court cases are better understood politically than legally is known as “legal realism” in law schools, or as the “attitudinal model” in political science. Its classic statement came not from a legal theorist or judge, but from Finley Peter Dunne’s fictional Irish-American bar owner, Mr. Dooley. As quoted in one of the most popular syndicated newspaper columns of 1917, Mr. Dooley opined that “no matter whether th’constitution follows th’flag or not, th’supreme court follows th’illiction returns.”²
A century after Mr. Dooley’s quip, his cynicism seems vindicated. The death of Justice Ruth Bader Ginsburg during the 2020 election campaign gave the Republicans the chance to cement a 6-3 majority on the Supreme Court. In the 2022 term, the result was a major shift of American law to the right. Dobbs wasn’t the only significant decision: the Supreme Court ruled that states and localities could not prevent concealed firearm use and made it impracticable for federal environmental and health agencies to regulate “major questions” such as the use of fossil fuels in electricity generation or whether occupational health requires a mandate that employees take measures against the spread of COVID-19.³
But it could get worse. The judges may not just follow the “illiction returns” – they may determine them.
This is a particularly stark problem in the United States, which has no nonpartisan election bureaucracy and in which the right to vote has long been central to racial and party politics. Elections in the United States are conducted by partisan elected officials, with oversight by the courts. Since the 1960s, the Supreme Court has been the final actor in deciding how these elections will take place: it favoured wider and equal election participation early on, but more recently the Court has made it easier for local and state governments to set partisan rules and harder for any government to restrict the impact of money on elections.
The upcoming term may have as stark an effect on how federal elections are conducted as the last term did on abortion rights. In Moore v. Harper, the Court will consider whether state constitutions can even impose any limits on a state legislature that decides to resolve an election, including one for presidential electors.
State legislatures lean more Republican than the electorate as a whole (as a result of other judicial decisions). State Republican parties are increasingly dominated by people who regard the 2020 election as stolen from Donald Trump. And they have always been hostile to broader voting. If state legislatures are not constrained by state constitutions or federal legislation, then both state and federal elections can be made less democratic to benefit Republican candidates. Moore shows the potential for a feedback loop of undemocratic elections leading to unpopular judicial decisions leading to more undemocratic elections. This in turn gives each election a feeling reminiscent of Weimar Germany, as each side treats it as potentially the last.
Judicial review takes shape
The U.S. Supreme Court is now less popular than at any time since polling began, and a number of justices have pushed back against questions about its legitimacy. But in a highly divided country, is there any way to avoid partisan conflicts over the legitimacy of supreme courts making fundamental policy decisions based on interpretations of vague texts?
Such debates cannot be avoided. Judicial constitutional review is in deep tension with democratic values, but it is not and cannot be apolitical. Once we reject the pre-Enlightenment belief that some people have deeper moral insight than others because of their status, we have to come up with a democratic justification for an electorate of nine dictating to a nation of 330 million. The modern conservative legal movement has tried to address this question by calling for respecting the original meaning of constitutional texts. But while this answer is not wrong, it is also not necessarily useful. Looking at text and history changes how courts talk about the fundamental issues, but does not really cure the divisions themselves.
Mr. Dooley’s century-old cynicism reminds us that there is nothing new about the worry that the U.S Supreme Court does politics, not law. The controversy over judicial power – and whether it could be distinguished from political power – goes back to the beginning of the Republic.
The 1776 Revolution unleashed a wave of popular democracy that the framers of the 1787 Constitution were concerned to restrain. In Federalist No. 10, James Madison identified as the chief danger in a republican form of government a majority “faction” interested in forgiving debts and redistributing property – which, for a Virginia planter, critically included slaves. Madison saw representative government and the “greater sphere of country” via a federal government as the solution because they would weaken democracy. In Federalist No. 78, Madison’s coauthor Alexander Hamilton added the institution of judicial review of legislation by “the least dangerous branch” of government. A life-tenured judiciary would be an ”excellent barrier to the encroachments and oppressions of the representative body.”
In the early 19th century, after the Federalist Party of George Washington, John Adams and Alexander Hamilton had been defeated politically, Chief Justice John Marshall made the U.S. Supreme Court the Federalists’ last bastion, proclaiming the Court’s power of judicial review over congressional statutes it found conflicted with the Constitution. Initially the Court used this power sparingly.⁴ But in the 1856 Dred Scott decision, the Supreme Court entered the centre of national debate, a position it has never vacated. Chief Justice Roger Taney, a Jacksonian Democrat, ruled that African Americans could not be citizens or access federal courts and that the federal government could not prohibit slavery in territories that had not been made states.⁵ The U.S. Civil War was the direct outcome of this decision.
The antislavery Republican Party was thus born hostile to judicial power, even as it made peace with the Constitution earlier abolitionists had labelled a “covenant with death and an agreement with hell.” Abraham Lincoln responded to Dred Scott and the Supreme Court’s hostility to his Republican Party by denying that the Court had any jurisdiction to do more than decide the specific case in front of it. It could not have been otherwise, since he was elected in 1860 on the promise to prevent what Taney had said was constitutionally required – the expansion of slavery into the territories. Lincoln expected the U.S. federal government to follow his interpretation of the Constitution, not the Supreme Court’s.
Republican hostility to the Supreme Court continued after the Civil War during Reconstruction. The Fourteenth Amendment (see box) – which is the foundation of modern American constitutional law and looks to Congress to enforce it – was written in direct response to the Court’s invalidation of the 1866 Civil Rights Act, which was intended to establish racial equality.
Constitution of the United States: Amendment XIV
1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws …
5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The New Deal and civil rights
After the defeat of Reconstruction in 1876 – which led to a one-party apartheid system called Jim Crow in the former Confederacy – the Supreme Court used the Fourteenth Amendment to stop legislatures from enacting pro-labour legislation. This period is known as the “Lochner era” after a decision striking down state legislation limiting working hours as an interference with freedom of contract.⁶ As a result, the Supreme Court was a favourite target of ire for progressives, populists and socialists.
It was Franklin Delano Roosevelt who, in 1937, ultimately tamed the Court, thereby making possible the New Deal. Roosevelt’s threat to increase the number of Supreme Court justices above nine (“court packing”) was widely believed to have motivated Justice Owen Roberts to vote to overrule Lochner and uphold minimum wage laws.⁷
For the New Dealers, the Supreme Court was an obstacle to be neutralized: a progressive judge was one who would get out of the way. It was only after the Second World War that progressive movements – notably the National Association for the Advancement of Colored People (NAACP) – turned to the Supreme Court to make positive progress. Some of the justices appointed by Roosevelt (including Felix Frankfurter) continued to think that the main job of judges in constitutional cases was to let elected politicians get on with governing. But other Roosevelt appointees listened to the NAACP, which sought a powerful ally for the unfinished business of Reconstruction.
Under the leadership of Earl Warren – a liberal Republican appointed by Dwight Eisenhower – the Court ordered the integration of segregated schools; the principle of “one person one vote” in state elections; abolition of school prayer; numerous procedural protections for criminal accused, most famously the “Miranda warning”; and a conception of free speech broader than anywhere else in the Western world.⁸ The legitimacy of the Warren Court was put in doubt by conservative Americans, with “Impeach Earl Warren” bumper stickers popping up throughout the south. Prodded by social movements that looked back to the Civil War and Reconstruction, the Warren Court read the Fourteenth Amendment in light of this revolutionary moment, without concerning itself too much with whether its authors would have agreed with its specific decisions.
While the Warren Court was certainly politically controversial, that controversy was not yet partisan. Like Warren, the leading judicial liberal William Brennan was appointed by the Republican President Eisenhower. While Eisenhower came to regret this, the Warren Court was possible because American political parties were not ideologically well sorted. So while Democrats appointed Democratic lawyers and Republicans appointed Republican lawyers, that did not mean much. Liberal Republicans were common, while the most reactionary elected officials were usually from the all-Democratic south.
The 1964 Civil Rights Act and the 1965 Voting Rights Act – which finally brought the apartheid system of formal, legal segregation to an end – were among the proudest accomplishments of Democratic President Lyndon Johnson, but they carried with Republican votes in the north against Democratic senators in the south. As Johnson predicted, though, they also led to a realignment of the American party system, as southern White Democrats joined the Republican Party and the parties increasingly became sorted on ideological lines.
This ideological sorting of the late sixties led to a new politics of judicial appointment. In the watershed 1968 election, Richard Nixon made the Court a political issue. He promised to appoint “strict constructionists” to the Supreme Court who would slow or reverse the changes of the Warren Court. When Nixon won, the Court was never to be the same.
The culture war, political realignment and constitutional law
The dilemma for American progressives in the 1970s was that with the decline of the cross-racial working-class coalition that Roosevelt had created, they found themselves on the unpopular side of what we now call the “culture war.” This became clearer with Nixon’s landslide victory in 1972 against George McGovern, whom the Republicans branded as the candidate of “acid, amnesty and abortion.” The AFL-CIO tacitly supported Nixon in that election, and White working-class voters north and south overwhelmingly voted for him. Key elements in Nixon’s support were fear of crime – which was surging – and fatigue with measures for racial integration that went beyond formal legal equality, most notably “busing” children from different racially defined neighbourhoods to attend one another’s schools.
Since Hamilton and Madison, America’s tradition of legalist antimajoritarianism had been about protecting property and primarily elite liberty from a popular “mob” bent on redistribution. In the wake of Nixon’s victory, and the turn of American politics to the right, it was tempting to look to the courts as a way of protecting the gains of Johnson’s Great Society and the Warren Court from a right-populist backlash. But with the forced resignation of the Johnson appointee Abe Fortas in 1969, Republicans obtained control of the Court, which they have retained ever since. What strategy could possibly lead to victories for the legal left in these circumstances?
The answer arose because of a split within the Republican coalition between its more libertarian, elite wing and the populist right that turned to Nixon out of opposition to the cultural revolution of the 1960s. Republican elite lawyers were, not surprisingly, disproportionately aligned with the elite wing. As a result, while the Supreme Court in this era had a solid bloc supportive of deregulation in general, breaking down state barriers to America’s internal market and restricting regulation of money in politics, on social issues the left could still obtain victories, albeit usually with narrow margins and always with reverses.
So it was under Nixon appointee Warren Burger that Harry Blackmun, also a Nixon appointee, wrote the Roe decision making access to abortion a national constitutionally guaranteed right in 1973. Both Burger and Blackmun had backed Nixon’s “tough on crime” agenda, most notably on the death penalty. It is unlikely that either expected the response that Roe provoked on the religious right: up until the Roe decision, abortion had been an issue that primarily divided Protestants from Catholics. But the New Right that developed into the Reagan coalition changed that, as mainline Protestants gave way to evangelicals who made common cause with Catholic conservatives.
From the early 1970s until the retirement of Anthony Kennedy in 2018, the median vote on the Supreme Court was a pro-business conservative with liberal impulses on some important social issues. Moving lightly over the decades, Roe was upheld by an overwhelmingly Republican-appointed court in 1993 in Casey, while the gay and lesbian movement eventually won important victories: despite a decision upholding sodomy laws in 1986, the quintessential moderate Republican justice Anthony Kennedy wrote decisions invalidating state restrictions on local governments enacting antidiscrimination measures, decriminalizing sodomy in 2003, and finally recognizing same-sex marriage.⁹ A succession of liberal pragmatists – Brennan, John Paul Stevens and most recently Elena Kagan – tried their best to find a way to put together a winning coalition, following Brennan’s dictum that what mattered most in the Supreme Court was how to count to five.
This was frustrating for the social-conservative wing of the conservative coalition, but not necessarily bad for the Republican Party. On the core issues that had brought the Nixon coalition to power, the Supreme Court reversed the Warren Court: the death penalty, invalidated in 1972 nationwide, was restored four years later, and capital sentences became increasingly hard to challenge.¹⁰ The Court upheld America’s becoming the country with the highest per capita population of incarcerated people in world history.
Most importantly from the perspective of the Republican Party, the Court in this era not only rejected challenges to the undemocratic features of the American electoral system, such as partisan – and de facto racial – gerrymandering, but also made it difficult for Congress to change these features, especially in the case of election spending and pre-election clearance of rules with racial impacts in the south.¹¹
Most famously, the Court split 5-4 to allocate the 2000 presidential election to George W. Bush in Bush v. Gore, first enjoining a further count of votes on the grounds that it could “delegitimize” Bush’s election, and then adding that holding that a statewide recount would violate the “equal protection” guarantee of the Fourteenth Amendment if different standards were used in different counties. This justification has been abandoned even on the legal right, but it gave the Republicans the presidency, the ability to enact significant tax cuts and ownership over the “Global War on Terror” after September 11, 2001.
The Burger (1969–86), Rehnquist (1986–2005) and early Roberts (2005–20) courts were characterized by narrow conservative majorities, with the decisive vote being in the hands successively of Sandra Day O’Connor, Anthony Kennedy and ultimately Roberts himself. All three were pragmatic pro-business conservatives – and O’Connor and Kennedy both had socially liberal streaks. Overall, the decisions resulted in the Court retaining wide popular respect, especially in comparison with the other branches of government.
The ascendancy of the ideological legal right
But the social conservative movement grew more frustrated. With the possible exception of Byron White – who was appointed by John F. Kennedy in 1963 and served until 1993 – no Democratic appointee proved to be anything but a liberal jurisprudentially. By contrast, while Nixon, Reagan and George H.W. Bush did each manage to appoint a fearsome conservative (William Rehnquist, Antonin Scalia and Clarence Thomas respectively), a number of Republican appointees moved to the left, including John Paul Stevens (appointed by Gerald Ford) and David Souter (appointed by the elder Bush). The breaking point was the 5-4 Casey decision in 1993, in which every member of the majority that upheld Roe had been appointed by a Republican president.
The “Impeach Earl Warren” slogan was updated to “No More Souters.” But to avoid unreliable Republican appointees, there needed to be a way of identifying reliable ideologues. A network of right-wing lawyers was developed through the Federalist Society to channel young lawyers toward clerkships with right-wing judges. On the academic side, this movement produced the doctrine of applying neoclassical economics to legal issues and the principle that constitutional and legislative texts should be interpreted in light of their linguistic meaning at the time they were enacted (“originalism” or “textualism”).
The decisive moment was George W. Bush’s failed 2005 nomination of Harriet Myers, his White House counsel and personal friend. Even though she was a Republican partisan and an evangelical Christian, Myers was not part of the ideological network of right-wing lawyers centred on the Federalist Society. That was enough for the conservative legal elite to have her replaced by Samuel Alito, who has been a reliable conservative vote in the subsequent 17 years and was, ultimately, the author of the Dobbs opinion.
As I noted in my article about the appointment of Neil Gorsuch, Donald Trump was permitted ideological unorthodoxies but an absolute line was drawn on the question of judges.¹² He was only able to rally the Republican coalition in 2016 on the promise that he would select those judges the right-wing legal establishment dictated, and he followed through. After Gorsuch – who replaced the fearsome Scalia and thus left the balance in the Court unchanged – he was able to replace the moderate Kennedy with Brett Kavanaugh and the liberal icon Ginsburg with Amy Coney Barrett. This final act of his one-term presidency turned a 5-4 conservative majority into an impregnable 6-3.
In the 2022–23 term, the Supreme Court will consider the reach of federal environmental law into wetlands, whether California can require pork sold within its borders to be raised humanely and whether the Biden administration can reverse Trump-era immigration policies.¹³ It seems clear that the conservative majority will rule that considering racial diversity in higher education is unconstitutional and contrary to civil rights–era laws.¹⁴ It is not quite as certain that it will overturn the Indian Child Welfare Act, since Gorsuch has been a longstanding supporter of Indigenous sovereignty despite his otherwise conservative and “colour blind” views.¹⁵ But this may not matter: in one of the 2022 decisions, the other five conservatives voted, over a passionate Gorsuch dissent, to give states criminal law authority on Native American reservations.¹⁶
The danger of the “independent state legislature” theory
The biggest threat to American democracy is the Moore case. Moore arises out of a unique feature of the American Constitution: that elections to federal office are governed by rules determined by state legislatures. Article I, Section 4 says the times, places and manners of holding elections for senators and representatives “shall be prescribed in each State by the Legislature thereof,” while Article II, Section 1 says that each state shall appoint electors to the Electoral College that decides presidential elections “in such Manner as the Legislature thereof may direct.” In both cases, conventional constitutional understanding is that the manner in which a legislature “directs” is determined through the ordinary legislative process of that state, including any constraints that may be imposed by the state constitution as interpreted by the state supreme court.
In the notorious Bush v. Gore decision, some conservative justices argued that the reference to “Legislature” in Article II meant that the Florida Supreme Court could not have the last word in interpreting Florida’s election law, since this would permit that court to decide differently from the legislature. A flaw in this reasoning is that all legislation must be interpreted by some court, so the justices were not really replacing the Florida Supreme Court’s interpretation with an unmediated legislative will, but rather with their own, competing, interpretation. Ultimately the basis on which the majority gave the 2000 election to Bush was that of the more moderate Republican justices, Anthony Kennedy and Sandra Day O’Connor, who preferred to rely on the equal protection clause of the Fourteenth Amendment.
The interpretation of “legislature” came up again in 2015 in a lawsuit brought by the Republican Arizona state legislature against the state’s independent redistricting commission set up as a result of a popular referendum.¹⁷ Once a firmly Republican bastion, Arizona is now a swing state. As is typical of such states, its legislature is to the right of the electorate as a whole because of the concentration of Democratic voters in the major cities of Phoenix and Tucson. The state legislature claimed that the voters could not amend the state constitution to provide for a nonpartisan commission to govern redistricting. Since a conservative majority was established on the U.S. Supreme Court in the early 1970s, numerous cases had given the green light to partisan gerrymandering. The question therefore was whether a state’s voters could impose a less partisan way of redistricting. With the increasing sophistication of artificial intelligence models of likely geographical voting patterns, by 2015 this issue was critical to how state and congressional elections would be decided.
The decision in Arizona Independent Redistricting Committee upheld the state constitutional provisions allowing for nonpartisan decisions over House districts. The case was decided 5-4, with moderate Republican Anthony Kennedy voting with the Democratic appointees. However, the Republicans who remain on the Court today (and the now-deceased Scalia) all supported the “independent state legislature theory,” which would prevent any nonpartisan approach to rules for federal elections, leaving these rules entirely in the hands of state legislatures.
Moore raises the same question. While according to the principle of stare decisis courts are generally supposed to follow precedent, Dobbs shows that this principle is in fact no obstacle if a majority thinks the precedent was wrong. There is every reason to expect that under its new composition, the Court will uphold the independent state legislature theory.
It would be too much to say that this would be the end of American democracy, which has always had the peculiarity of being run with partisan election rules. But these efforts take place in the context of the rise of conspiracy thinking within the mainstream Republican Party. It is not hard to imagine Republican state legislatures in swing states effectively deciding a presidential election based on patently undemocratic reasoning. And the idea that a president chosen under such circumstances would go on to further change the composition of the highest court requires no imagination at all..
What is to be done?
Whatever the results in specific cases, America’s constitutional structure will frustrate majority rule. It will be extremely hard for the more progressive politics favoured by the millennial generation (those born after 1980) to be translated into actual public policy. Even if progressive Democrats win increasing shares of the popular vote, a combination of urban concentration and state gerrymandering will mean that it will require supermajorities to get a majority in the House of Representatives. Moreover, the Senate and the Electoral College have inherent biases in favour of rural voters. And even if Democrats manage again to win the presidency, the House and the Senate (as was narrowly accomplished in 2020), a Supreme Court chosen through what amounts to actuarial lottery provides a final veto point on substantive change.
The result will be national public policy dominated by symbolic culture war issues that promote angry “engagement” on social media but have no effect in the hard currency of legislation, taxes and spending. America could find itself lurching toward unconstitutional change.
Where does that leave the Supreme Court? The Warren Court felt that it could only give effect to the post–Civil War constitutional amendments by making change against the will of popularly elected legislatures, particularly at the state level. For critics of the Warren Court – notably Robert Bork whom Reagan tried and failed to appoint to the Supreme Court – the legitimately republican attitude was that unelected judges should do as they are told by democratically accountable legislatures. The only exception would be if the people themselves adopted overarching rules through a supermajoritarian procedure, as they do when they ratify and amend written constitutions. But either way, the will of the judge should be subordinate to the will of the people, whether in legislative or constituent form. For Bork, this meant that judges could only legitimately decide a case in accord with the “original intent” of either the legislator or the constitutional ratifier.
For his part, Scalia – the most theoretically minded conservative justice of his generation – recognized that the undisclosed “intent” in the brain of Madison or some more recent legislator cannot be binding because it is only the “public meaning” of the text that could be known to the ratifiers or legislative majority. But Scalia, an opponent of racial preferences for African Americans, had to recognize that the Reconstruction authors of the Fourteenth Amendment were strong proponents of federal action that was highly conscious of the obvious racial divide of the post–Civil War south.
Scalia argued that, in late-20th-century circumstances, the meaning of equal protection led to an application that was opposite to what it would be in the 1860s. But of course he could only argue this on the basis of his own, controversial, understanding of late-20th-century racial politics, rather than purely on the basis of “original public meaning.” And indeed, the newly appointed Justice Ketanji Brown Jackson, the first Black woman on the Court, was able to make deeply originalist arguments against what her conservative colleagues are going to do to affirmative action in universities, based on her different understanding of the extent to which racial politics have changed since the post–Civil War era.
The problem with “originalism” is thus not that it is wrong, but that it does not provide the solution to the problem of disagreement based on political priors. That is not to say that the meaning of legal terms changes without using the amending process. But when it comes to the meaning of legal terms that refer to contestable normative principles like “equal protection” or “liberty,” those who apply those terms must have reference to that contestable debate.
Since that debate is also what politics is about, originalism does not solve the problem it poses. As Justice Kagan has said, “we are all originalists now” – constitutional briefs from all sides are now focused on history and text. But as originalists, we seem to have the same differences that we always had in saying what the implications of text and history are for our current disputes.
It is therefore not enough to accept that American judges should give effect to the U.S Constitution as Canadian judges should give effect to the Canadian. Unless we can say more than this, we have no prospect of getting out of the death spiral, since political actors will continue to appoint judges who – completely sincerely and in good faith – see the constitutional commands as serving the policy goals of those political actors. And U.S. experience suggests that they just get better at doing this as time goes on. Yet this undermines the systemic legitimacy that it presupposes.
Law schools have generated many proposed solutions to this “countermajoritarian dilemma” – and presumably will keep doing so as long as they grant master’s degrees in constitutional law. The problem is that any solution will either appeal only to one side of the national debate or be too generic to resolve the issues at stake. A solution that is adopted academically will no doubt shape the rhetoric of Supreme Court justices, especially since much of the actual writing is done by clerks who recently graduated from those schools. But it won’t affect their votes.
The problem that faces proposals of conceptual reform also faces proposals of institutional reform. Some reforms would be good. The United Kingdom Supreme Court is larger, and actual decisions are made in panels that are randomly assigned. This promotes a more cautious, institutional style. The Canadian Supreme Court has mandatory retirement, which usefully promotes turnover and at least avoids the ghastly importance of timing of death.
It seems hard though to see how any reform can escape the trap that it will inevitably be against the interests of one side in the American national ideological struggle, and will therefore simultaneously be difficult to enact and legitimacy-destroying if it is. Perhaps the only realistic conclusion is that legitimacy crises have no solutions and must either be mitigated through good luck or result in a spiral of decomposition.
America has been lucky in its past crises. Perhaps we are left with no more than the hope that it will be again.
Notes
¹ Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), holding no constitutional right to access abortion and overruling Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992).
² Through Mr. Dooley, Dunne was commenting on Downes v. Bidwell, 182 U.S. 244 (1901).
³ New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___ (2022) (discretionary limits on issuing permits to carry concealed firearms contrary to Second Amendment); West Virginia v. Environmental Protection Agency, 597 U.S. __ (2022) (EPA’s power to determine “best system of emission reduction” does not allow it to regulate electricity fuel mix because this is a “major question” that must be set out explicitly by Congress).
⁴ Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
⁵ Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
⁶ Lochner v. New York, 198 U.S. 45 (1905).
⁷ West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
⁸ Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Baker v. Carr, 369 U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533 (1964); Engel v. Vitale, 307 U.S. 421 (1962); Miranda v. Arizona, 384 U.S. 436 (1966) (largely overruled by the new conservative supermajority in Vega v. Tekoh, 597 U.S. __ (2022)); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (restricting libel suits against public figures based on First Amendment).
⁹ Bowers v. Hardwick, 478 U.S. 186 (1986); Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. 644 (2015).
¹⁰ Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976).
¹¹ Buckley v. Valeo, 424 U.S. 1 (1976) (election expenditures protected free speech under First Amendment); Citizens United v. Federal Election Commission, 588 U.S. 310 (2010) (restrictions on third-party spending in elections unconstitutional); Shelby County v. Holder, 570 U.S. 529 (2013) (striking down preclearance provisions of the 1965 Voting Rights Act as contrary to state sovereignty).
¹² Gareth Morley, Law as Politics, Politics as Law: Neil Gorsuch and the Future of the U.S. Supreme Court, Inroads, Summer/Fall 2017, pp. 96–103.
¹³ Sackett v. Environmental Protection Agency; National Pork Producers Council v. Ross; Texas v. Biden (all upcoming).
¹⁴ Students for Fair Admissions v. UNC (upcoming; is use of race in college admissions contrary to the equal protection clause of the Fourteenth Amendment?) and Students for Fair Admissions v. Harvard College (upcoming; is use of race in college admissions contrary to 1964 Civil Rights Act?).
¹⁵ Haaland v. Brakcen (upcoming).
¹⁶ Oklahoma v. Castro-Huerta, 597 U.S. ___.
¹⁷ Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015).
