The U.S. Supreme Court Has Put Itself on Trial. What Will Be the Verdict?
Nov 13, 2020 by David Fowler
The presidential election is over. The results, however, are not final as a matter of law. I don’t know whether the voter fraud that accompanies all elections will prove sufficient to change the media-predicted results in this election, but something more than ballot integrity is on the line -- the legitimacy of the U.S. Supreme Court. And it may do itself in for generations to come.
Setting Up the Situation—The ‘Power’ of the Supreme Court
In Planned Parenthood v. Casey, a majority of the Court explained where its real power lies:
The Court's power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands. (emphasis added)
Note there are two components to the Court’s “power.”
First, the Court rightly said that “a decision without principled justification would be no judicial act at all.” Making up the law is not principled and will undermine the Court’s power. Hang onto this thought.
Second, the Court said public perception is critical to its power in certain cases, stating that, “[S]omething more is required” when the legal principle it articulates is contrary to one it earlier articulated. In those kinds of cases, the Court noted that a “conscientious claim of principled justification” may not be accepted as such unless the new “justification [is] beyond dispute.”
Putting those two things together, the Court said its power lay in having a principled legal reason for its decision, and in certain kinds of cases, it better be abundantly clear that the principle is constitutionally sound and its application principled, not policy-driven or political in nature.
“Thus,” the Casey Court reasoned, “the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”
The Lawsuit That Puts the U.S. Supreme Court’s Legitimacy on Trial
A critical lawsuit is emerging out of Pennsylvania. The U.S. Supreme Court has been asked to decide whether a ballot-counting decision by the Pennsylvania Supreme Court violates the U.S. Constitution.
Last year, the Pennsylvania General Assembly enacted a statute unambiguously requiring that absentee and mail-in ballots be received by Election Day. However, the state’s Supreme Court said that the time limit in the statute violated the Pennsylvania Constitution.
The state Supreme Court’s decision may be correct for all I know, and the U.S. Supreme Court has no business telling the state’s Supreme Court how it must interpret the state’s Constitution. Conservatives need to understand that principle and not want the U.S. Supreme Court to overrule a sovereign state’s understanding of what its own constitution means.
However, the U.S. Constitution says that a state’s legislature shall set the election rules, and the Pennsylvania Supreme Court went beyond declaring that the ballot law violated the state Constitution and, therefore, was not enforceable. The state high court created its own rules for how mail-in ballots should be handled.
No Court has the power to effectively make up new statutes to replace the ones it says are unenforceable. In usurping the power the U.S. Constitution gave to the Pennsylvania legislature, the Pennsylvania Supreme Court violated the U.S. Constitution.
Why the U.S. Supreme Court’s Legitimacy is at Stake.
There are reasons the U.S. Supreme Court could decline to hear the case, some of which may be principled. But I don’t think it will ever satisfy the second criteria on which the legitimacy of its power rests—public perception.
Why is this? Because since Roe v. Wade the Court has been busy creating the perception among liberals and conservatives that it is a policy-driven body that makes up the law to achieve whatever end it has in mind.
Why No One Expects the Court to be Principled Anymore.
Democrats clearly think the Court is a political and policy-driven body. That was driven home by the fears they expressed about new Justice Barrett. None dared questioned her legal knowledge or character. It was all about how she would vote on policy decisions involving abortion, ObamaCare, and gay rights/same-sex marriage.
Republicans, on the other hand, have heard pro-life after pro-life lawyer explain why no state legislative body should enact a pro-life law that directly challenges the legal reasoning in Roe v. Wade, even though liberals have conceded that it was flawed. Why? They say we do not have enough votes on the Court. That is only important because they know the Court needs to be able to win in the court of public opinion if it reverses Roe.
Counting votes on the Court when it comes to how a constitutional question will turn out is a lot like counting votes for President. It is a political action based on the branch of government in question being political in nature; the merits of the legal arguments are secondary.
That is how Democrats and Republicans both look at the Supreme Court now. This perception is the product of the Court’s long train of making up constitutional justifications for some of its most controversial decisions.
The Perception of Legitimacy Lost
Now, when the legitimacy of a U.S. Supreme Court with a judicial power limited to judging a dispute based on written, given law is most needed to settle questions about the legitimacy of a fierce and close political election, we don’t have one.
The perception the U.S. Supreme Court has created—that it is a political, policy-driven body—is about to come home to roost. Whatever it does will be seen as political by at least half the nation. Its credibility may be lost for years to come.
[i]All scripture quotations are from the New King James Version
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.