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The Supreme Court’s Crisis of Legitimacy
The United States of America today is a fundamentally different country than the United States of America three weeks ago.
In this new U.S., the federal government can’t regulate carbon emissions from coal-fired power plants under the Clean Air Act because the law, which first passed in 1963, doesn’t specifically give the government that power. In addition, local government cannot stop a school official from leading students in prayer. But it can control what happens inside a uterus. But it can’t prevent you from carrying a gun in public. But it can assert legal jurisdiction over Native American reservations.
The common thread is the Supreme Court is the most radically… I don’t even want to say “Conservative,” because this court has been throwing out precedents the way Donald Trump flung his lunch across the White House dining room. So … interventionist? Revanchist? Insurrectionist?
There’s a great line (one of many) in Mel Brooks’ 1974 classic Young Frankenstein. In the scene, the monster has broken loose, the villagers are massing in the town square, and Police Inspector Kemp (played by Kenneth Mars), comes out to address the angry mob: “A riot is an ugly thing… and I think that it is just about time that we had one!”
There comes a point when enough is enough, and people take to the streets.
Comedy aside, this is deadly serious stuff: All forms of societies occasionally experience massive direct action, both violent and not. In general, it doesn’t seem to matter whether that society is democratic or autocratic: There comes a point when enough is enough, and people take to the streets.
As billionaire investor Nick Hanauer wrote a few years ago, “The pitchforks are coming.” And the Supreme Court’s actions may be the spark that gets the torches burning.
Hanauer was writing in 2014 about the destabilizing effects of wealth hoarding by the top one-hundredth of the 1%, but there’s plenty more happening recently that is tearing the seams of U.S. society apart.
A lot has changed since 2014: The U.S. has gone from a country that, with its first Black president, looked as if it might finally start to live up to its oft-bragged-about higher purpose, to a country that just barely dodged a fascistic coup, whose enablers and supporters are still working to undermine American democracy.
On June 24 this year, a movement that first coalesced nearly five decades ago finally achieved its goal, and the Supreme Court, now dominated by a radical right-wing supermajority, for the first time in U.S. history overturned a long-established precedent to rescind a fundamental human right.
There’s not a lot to say about the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, that hasn’t already been said. The most succinct criticism came from Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan’s fiery dissent: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
The slate of decisions issued by the court this term have reversed decades of progress and even civil stability.
In other words, they did it because they could. Nothing else—precedent, the merits of the case, public opinion, or the fact that abortion bans only make safe abortions impossible—mattered.
But abortion is just the beginning. Justice Clarence Thomas wrote in his concurring opinion to Dobbs that three landmark cases should be overturned: Obergefell v. Hodges, Lawrence v. Texas, and Griswold v. Connecticut decisions, which affirmed the rights, respectively, to same-sex marriage, sexual behavior between consenting adults in the privacy of their own home, and the use of contraception by married couples.
Taken as a whole, the slate of decisions issued by the court this term have similarly reversed decades of progress and even civil stability:
In New York State Rifle & Pistol Association v. Bruen, the court invalidated New York State’s law that required people to demonstrate a need in order to conceal-carry a gun outside the home.
In Kennedy v. Bremerton School District, the court ruled that a public school official had the right to lead students in prayer at a school event.
In Oklahoma v. Castro-Huerta, the court reversed a landmark decision made just two years ago that recognized Native American tribes’ sovereignty over much of eastern Oklahoma. Instead, this court ruled that a state police force will be allowed to charge non-Native people with crimes committed on the reservation, instead of federal courts, which has been the standard process in keeping with the U.S. government’s nation-to-nation relationship with tribal governments. Chief Justice John Roberts in his dissent said the ruling would cause chaos and “has profoundly destabilized the governance of eastern Oklahoma.”
And in saving what may be a momentous decision on par with Dobbs for the final day of its term, in West Virginia v. EPA, the court ruled the federal government could not issue administrative rules—in this case, to regulate carbon emissions at coal-fired power plants—unless Congress specifically spelled out such rules in the legislation it enacted. This is important, not just because it ties the government’s hands in enacting climate policy, but also because the administrative rule-making process has been the primary method by which the federal government has governed since the New Deal era. Congress, a collection of politicians who are mostly lawyers, has neither the expertise nor intention of making laws governing the highly technical nuances of a modern administrative state.
We’re at a moment when the institutions of American governance are increasingly seen as unfair, unjust, compromised by politics, and undemocratic.
The legal rationale for these cases is all over the map. There’s not so much a judicial philosophy at work as a power play. In West Virginia, for example, the court was ruling on an Obama administration-era policy that was never enacted, and therefore the decision, according to some legal scholars, violates Article 3 of the Constitution.
But there’s another consequence of these decisions that this new radical majority doesn’t appear to have considered: The court is widely seen as illegitimate. Popular support for the Supreme Court is at an all-time low of 25%, five points lower than when Hanauer warned his fellow billionaires about the pitchforks. And that was before the court took away a constitutional right that the vast majority of Americans wanted to preserve. Less than 10% of Americans want abortion to be illegal in all circumstances, according to Pew Research.
I wrote about the danger of the Supreme Court’s illegitimacy shorty after Justice Ruth Bader Ginsburg died. Then, I was worried about efforts to ram a new replacement justice onto the Supreme Court before the election, and that, as was the case in the 2000 presidential election, the Democrats would let them get away with it “for the good of the country.”
And it’s true: Then-Senate Majority Leader Mitch McConnell had used the power of his office in 2016 to deny former President Obama a Supreme Court seat a full year before the end of his second term (with the reasoning that, in an election year, the voters should decide), and then in 2020 allowed former President Trump, who never won the popular vote, to install Ginsburg’s replacement just a week before Election Day, after many Americans had already voted.
Legitimacy is not something that can be assumed or taken from anyone else. It is only granted by those who believe the system in which they lost is ultimately fair, and thus respect the outcome. But we’re at a moment when the institutions of American governance are increasingly seen as unfair, unjust, compromised by politics, and undemocratic.
Five out of the six justices who overturned Roe were appointed by Republican presidents who’d lost the popular vote. Two of those six are sitting in seats stolen by the Republicans from the Democrats. Two of the six who destroyed the right to bodily autonomy have been credibly accused of sexual harassment or assault. The latest power moves by the radical court will only reinforce the belief that the court is illegitimate.
Now, in 2022, democracy hangs by a thread.
That’s a real problem. Chief Justice Roberts, who at least has seemed concerned about the court’s reputation, insists the court is nonpolitical, that its decisions should be given the respect they deserve. But Roberts no longer controls his court, and he’s impotently watching as an unfettered majority is pulling at every lever of power it can reach. Because they can.
So what’s left, when the ultimate arbiter of justice in America is seen to be a radical political actor?
Some state governments may decide to effectively nullify the effects of the Dobbs decision. Already, Democratic governors, including California’s Gavin Newsom, Oregon’s Kate Brown, and Washington’s Jay Inslee, have announced they would not cooperate in the enforcement of punitive laws, such as blocking travel to people seeking abortions. (For what it’s worth, Attorney General Merrick Garland also announced that the government would work to ensure states don’t interfere with interstate travel and mail-order abortion medication, but that stated position can, and will, change the minute Republicans retake power.)
We also need to vote. But when the onslaught of Republican power moves at local and federal levels are intended to intimidate election officials and fix outcomes in their favor, the one option we have left is mass action. We’ve already seen multiple protests across the U.S. in reaction to Dobbs. Those are fine, and cathartic. But the pressure also needs to be sustained until it can be transformed into power, which is a lot harder to do after the initial outburst of anger abates. Fortunately, there’s a model to follow.
When the United Nations declared 1975 would be International Women’s Year, a women’s group in Iceland decided to test it. Women in the country made about 60% the salaries of men, in addition to taking on nearly all domestic labor, so they called for a one-day strike. The “Women’s Day Off” was a demonstration of power for the small island nation, but for one day, Oct. 24, 90% of all Icelandic women refused to go to their paid jobs or cook, clean, or provide child care.
The nation ground to a halt. Schools closed. Retail shops, fish-processing factories, and theaters, all largely staffed by women, also shut down, and many other businesses slowed down. Men’s offices transformed into impromptu day care centers as children were brought to work. A rally in downtown Reykjavik drew 30,000 attendees (nearly 14% of the population of the entire country—imagine the 2017 Women’s March on Washington, but with a crowd 94 times larger).
The rally worked. Iceland’s parliament passed a law guaranteeing equal pay the following year, and even if it took time for reality to catch up to the intent of the law, in 1980, Iceland elected its first woman president. The strike also inspired similar actions around the world: Poland’s “Black Protest” in 2016 against that nation’s abortion restrictions followed the same model (itself inspiring Ireland’s “Strike 4 Repeal,” which succeeded in overturning that nation’s near-total ban on abortions). The International Women’s Strikes on March 8, 2017 and 2018, were also based on the Iceland action, taking place in 50 countries around the world.
Americans in recent years have shown their capacity to rally in solidarity with one another. The 2017 Women’s March drew up to 5.2 million people in at least 653 U.S. cities. Shortly after Trump’s inauguration, demonstrators gathered in more than a dozen airports to protest an executive order that would have sent refugees back to unsafe countries. Black Lives Matter has been growing in size and influence since its first demonstrations nearly a decade ago, and White allies have regularly shown up in solidarity. Pride marches, an annual celebration of LGBTQ rights and lives, continue to carry forward today the activism of the Stonewall riots of 1969, drawing mixed crowds of people both queer and not.
That solidarity now needs to be turned toward specific political objectives, specifically those that will reverse the direction of the country’s drift toward the extreme right: think ensuring fair and free elections at every level, codifying abortion and other civil rights, adding seats to the court and states to the union, and so on. U.S. Rep. Pramila Jayapal of Seattle has already floated the idea of a general “women’s strike” in response to the overturning of Roe, presumably with the intention of prodding the Biden administration into action.
When we think “strike,” we often think of the labor-union-driven mass actions of the late 19th and early 20th centuries, artifacts of an era that won us such benefits as the weekend and the 8-hour workday. Those large industrial actions have indeed become less common, and a general strike like the kind that brought Iceland to a halt has been largely unheard of in recent history.
Part of that is that the anti-labor Taft-Hartley Act, enacted in 1947, effectively bars workers from striking in solidarity with those in other businesses. But another part of the reason is because the U.S. of 2022 is so much bigger than Iceland of the 1970s. It will take a lot for a single strike to have wide-ranging effects.
But the moment may be calling for that concerted action. Now, in 2022, democracy hangs by a thread. The Supreme Court promises to issue yet more revanchist decisions in the coming term; the docket includes cases concerning redistricting under the Voting Rights Act, the Clean Water Act, and Affirmative Action. And one of our two major political parties is openly siding with an armed insurrection that Trump instigated to overturn the 2020 election and install him as an unconstitutional autocrat.
It’s been more than 75 years since the last major general strike in the U.S., one that made society take notice and change direction. Yet general strikes are one of the last nonviolent tools left when all other legal means of redress to injustice have been thwarted. They can be ugly and dangerous, especially when police—ironically unionized to protect their own jobs—violently demonstrate their true allegiance to the forces of capital.
Maybe it’s about time the people demonstrate their full power. A general strike can lead to real gains in liberty; just witness Iceland. And when the arbiters of law are undemocratically installed and unaccountable, the lawmakers are corrupted by lobbying and conflicts of interest, and the chief executive actively seeks to overturn an election and gain unlimited power—all conditions that are illegitimate in a democratic society—resistance is the only legitimate democratic force left.
What other recourse is there, except to reach for the pitchforks?
Chris Winters is a senior editor at YES!, where he specializes in covering democracy and the economy. Chris has been a journalist for more than 20 years, writing for newspapers and magazines in the Seattle area. He’s covered everything from city council meetings to natural disasters, local to national news, and won numerous awards for his work. He is based in Seattle, and speaks English and Hungarian.