Some fun facts about the Justices of the United States:
- Five were appointed by presidents who took office despite losing the popular vote. All 5 voted to overturn Roe.
- Three of the Republicans on the Court—the Chief Justice, Kavanaugh, and Coney Barrett—worked for President George W Bush's Florida recount team.
- The 52 senators who voted in favor of Justice Kavanaugh's (R) confirmation represent 145.9 million Americans. The 48 senators who voted against him represent 180.7 million.
- The 50 senators who voted in favor of Justice Coney Barrett (R) represent 157.0 million to the 170.5 million the 48 no votes represent.
- Eight have law degrees from Harvard or Yale. (This will remain true next month when Justice Brown takes office.)
With those facts in mind, James Fallows argues that the Court burned its own legitimacy to ashes by not remembering the simple truth about judicial power:
[D]emocratic legitimacy depends in the long run on majority rule, combined with minority rights.
We’re now closer to systematic rule by a minority, rather than respect for its rights. A democracy cannot forever function this way.
The Supreme Court has a long up-and-down history of glory and of tawdriness. But I argue that the leaders and eras that stand up best in retrospect showed awareness that the Court’s power depended on legitimacy, and legitimacy depended on the Court’s care about how it fit into the longer-term life of a democracy.
[A] court concerned about legitimacy, would under- rather than over-intrude in public affairs.
Over-intrusion is what we have. In the anti-Miranda ruling. In the blocking of gun control. In the outright voiding of Roe v. Wade.
The Court can make its rulings. From behind its barricaded and no-guns-allowed building.
It cannot preserve its legitimacy this way.
Linda Greenhouse concurs:
Consider the implication of Justice Alito’s declaration that Roe v. Wade was “egregiously wrong” from the start. Five of the seven justices in the Roe majority — all except William O. Douglas and Thurgood Marshall — were appointed by Republican presidents. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.
In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking.
There will be turmoil now, for sure, as the country’s highways fill with women desperate to regain control over their lives and running out of time, perhaps followed by vigilantes across state lines. But the only turmoil that was caused by Roe and Casey was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of the precedents. Justice Alito’s reference to “turmoil” reminded me of nothing so much as Donald Trump’s invocation of “carnage” in his inaugural address. There was no carnage then, but there was carnage to come.
No, justices, your work isn’t done. What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.
Here's some "turmoil:" some asshole in Iowa drove his truck into a pro-choice demonstration yesterday, injuring at least one woman.
One simple solution: 18-year terms. If we adopt this reform, Thomas (R) would be the first one to go followed by the Chief Justice (I) and Alito (R), which are strong arguments in favor as far as I'm concerned.