By Jesse Wegman
Mr. Wegman is a member of the editorial board.
At the close of one of the most consequential and least constitutional terms in the Supreme Court’s history, it’s hard to ignore one particularly offensive trend: the right-wing justices’ repeated and patronizing attempts to minimize the importance of their unprecedented decisions.
There’s nothing to see here, they regularly seem to say; everyone who is upset at their decisions is being hysterical and should just calm down. Take a few recent examples:
“The court is trying to distance itself from the monsters it created,” Mary Anne Franks, a law professor at George Washington University and the author of “The Cult of the Constitution,” told me. “They’re trying to say, ‘We don’t know where you got these crazy ideas from!’ But of course we do know where they got them from.”
In the latest gun case, United States v. Rahimi, the crazy ideas came straight from the source: the Supreme Court’s jaw-dropping 2022 decision in New York State Rifle & Pistol Association v. Bruen. For a gun law to be compatible with the Second Amendment, the decision said, the government “must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.” In other words, if the American founders didn’t pass a specific gun law in the 18th century, then we in the 21st century can’t either. Applying that reasoning, the U.S. Court of Appeals for the Fifth Circuit determined that there were no founding-era laws keeping guns from domestic abusers, and so today’s law doing so could not stand.
Advertisement
SKIP ADVERTISEMENT
The Bruen decision was written by Justice Clarence Thomas and signed by all five of his conservative colleagues. But when the Fifth Circuit’s decision protecting the gun rights of domestic abusers came before the court, the justices blinked. Eight of them, including the court’s three liberals, agreed that such laws are well within the federal government’s authority to enact. Only Justice Thomas held his ground and insisted on finding an exact historical analogue. Give him credit for consistency at least.
Sign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.
If you find it hard to square the command in the Bruen case with the result in the Rahimi case, you’re not alone. Lower federal courts across the country have been flailing for two years as judges play amateur historians and try to figure out whether Americans two centuries ago passed laws that are similar enough to those today. In her concurrence, Justice Ketanji Brown Jackson said what the court’s majority would not.
“Make no mistake: Today’s effort to clear up ‘misunderstandings’ is a tacit admission that lower courts are struggling,” she wrote. “In my view, the blame may lie with us, not with them.”
Justice Jackson, the court’s most junior justice but its senior gaslighting fighter, had similar criticisms of her right-wing colleagues’ behavior in the Idaho abortion case. Late last month, the court dismissed the case without comment, on the grounds that it had agreed to hear it too soon. This meant the Idaho law would be put on hold, which some took as a victory for reproductive rights. Wrong, Justice Jackson explained in a partial dissent from the dismissal. The court itself had created the crisis by allowing the state’s draconian law to take effect and then taking five months to decide whether to hear the case at all.
“Our intervention has already distorted this litigation process,” Justice Jackson wrote. “It is too little, too late for the court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The court has made this bed, so now it must lie in it.”
Why all the gaslighting? Some of it can be understood as “an exercise in institutional self-preservation,” as the veteran Supreme Court correspondent Linda Greenhouse wrote recently of the gun case for Times Opinion. The court’s power derives from its perceived legitimacy, which in turn depends on its public approval. The more it issues unpopular, unhinged decisions, the more that approval rating, already at record lows, continues to plummet. The justices could choose to respond to this by showing a modicum of respect for the plain language of the Constitution, for longstanding federal law and for its own established precedents.
But that would betray the long effort by right-wing activists and lawmakers to transform this court into the sword and the shield in their culture war. Senator Mitch McConnell didn’t play the most egregious political hardball in living memory only to be rewarded with a bunch of moderate legal nerds in robes.
So instead the justices in the court’s supermajority have raced to push through a lengthy conservative wish list of decisions, upending decades of well-settled law even as they pretend they’re being measured and reasonable. In its way, this subterfuge is understandable: Who wants to be seen as allowing violent people to walk around armed, or forcing pregnant women to wait until they are on the verge of death before they can receive standard medical care?
And yet that is the real-world dystopia the right-wing justices are creating right now. “People are going to die, and have died, because of their decisions,” Ms. Franks at George Washington University said. She offered a way of thinking about the latest Supreme Court term, which, in addition to some rulings in favor of Donald Trump, included a decision upholding an Oregon city’s ban on homeless people sleeping outdoors.
“You could read this term with the framework of: Who seems vulnerable, who seems powerful?” she said. “Trump is vulnerable; homeless people are not. It’s this strange inverted world.”
Mr. Wegman is a member of the editorial board.
At the close of one of the most consequential and least constitutional terms in the Supreme Court’s history, it’s hard to ignore one particularly offensive trend: the right-wing justices’ repeated and patronizing attempts to minimize the importance of their unprecedented decisions.
There’s nothing to see here, they regularly seem to say; everyone who is upset at their decisions is being hysterical and should just calm down. Take a few recent examples:
- In his majority opinion in the case about presidential immunity, Chief Justice John Roberts mocked the three liberal dissenters for striking “a tone of chilling doom that is wholly disproportionate to what the court actually does today.” (Reality check: The immunity ruling — which gave presidents carte blanche to break most criminal laws when carrying out their official duties — is not grounded in any clause of the Constitution. It went far beyond what even the most pessimistic court observers expected; the dissenters, if anything, responded with restraint.)
- During oral arguments in a case that pitted Idaho’s near-total abortion ban against the federally guaranteed right of a woman to end her pregnancy if necessary to stabilize a dire medical crisis, Justice Samuel Alito dismissed the government’s concerns. “Nobody’s suggesting that the woman is not an individual and she doesn’t — she doesn’t deserve stabilization,” the justice who wrote the opinion striking down Roe v. Wade said with his trademark irritation. “Nobody’s suggesting that.” (Reality check: That is precisely what Idaho was suggesting, by arguing that federal law doesn’t pre-empt the state ban.)
- Or take the chief justice again, writing for the court in upholding a federal law that prohibits domestic abusers from possessing guns. A federal appeals court had struck down the law as unconstitutional. “Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote, explaining why the lower court had been wrong. “These precedents were not meant to suggest a law trapped in amber.” (Reality check: The lower court was following the letter of a Supreme Court ruling from two years ago, which held that any gun law without an almost exact analogue from the founding era — like laws that apply to domestic abusers — is unconstitutional.)
“The court is trying to distance itself from the monsters it created,” Mary Anne Franks, a law professor at George Washington University and the author of “The Cult of the Constitution,” told me. “They’re trying to say, ‘We don’t know where you got these crazy ideas from!’ But of course we do know where they got them from.”
In the latest gun case, United States v. Rahimi, the crazy ideas came straight from the source: the Supreme Court’s jaw-dropping 2022 decision in New York State Rifle & Pistol Association v. Bruen. For a gun law to be compatible with the Second Amendment, the decision said, the government “must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.” In other words, if the American founders didn’t pass a specific gun law in the 18th century, then we in the 21st century can’t either. Applying that reasoning, the U.S. Court of Appeals for the Fifth Circuit determined that there were no founding-era laws keeping guns from domestic abusers, and so today’s law doing so could not stand.
Advertisement
SKIP ADVERTISEMENT
The Bruen decision was written by Justice Clarence Thomas and signed by all five of his conservative colleagues. But when the Fifth Circuit’s decision protecting the gun rights of domestic abusers came before the court, the justices blinked. Eight of them, including the court’s three liberals, agreed that such laws are well within the federal government’s authority to enact. Only Justice Thomas held his ground and insisted on finding an exact historical analogue. Give him credit for consistency at least.
Sign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.
If you find it hard to square the command in the Bruen case with the result in the Rahimi case, you’re not alone. Lower federal courts across the country have been flailing for two years as judges play amateur historians and try to figure out whether Americans two centuries ago passed laws that are similar enough to those today. In her concurrence, Justice Ketanji Brown Jackson said what the court’s majority would not.
“Make no mistake: Today’s effort to clear up ‘misunderstandings’ is a tacit admission that lower courts are struggling,” she wrote. “In my view, the blame may lie with us, not with them.”
Justice Jackson, the court’s most junior justice but its senior gaslighting fighter, had similar criticisms of her right-wing colleagues’ behavior in the Idaho abortion case. Late last month, the court dismissed the case without comment, on the grounds that it had agreed to hear it too soon. This meant the Idaho law would be put on hold, which some took as a victory for reproductive rights. Wrong, Justice Jackson explained in a partial dissent from the dismissal. The court itself had created the crisis by allowing the state’s draconian law to take effect and then taking five months to decide whether to hear the case at all.
“Our intervention has already distorted this litigation process,” Justice Jackson wrote. “It is too little, too late for the court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The court has made this bed, so now it must lie in it.”
Why all the gaslighting? Some of it can be understood as “an exercise in institutional self-preservation,” as the veteran Supreme Court correspondent Linda Greenhouse wrote recently of the gun case for Times Opinion. The court’s power derives from its perceived legitimacy, which in turn depends on its public approval. The more it issues unpopular, unhinged decisions, the more that approval rating, already at record lows, continues to plummet. The justices could choose to respond to this by showing a modicum of respect for the plain language of the Constitution, for longstanding federal law and for its own established precedents.
But that would betray the long effort by right-wing activists and lawmakers to transform this court into the sword and the shield in their culture war. Senator Mitch McConnell didn’t play the most egregious political hardball in living memory only to be rewarded with a bunch of moderate legal nerds in robes.
So instead the justices in the court’s supermajority have raced to push through a lengthy conservative wish list of decisions, upending decades of well-settled law even as they pretend they’re being measured and reasonable. In its way, this subterfuge is understandable: Who wants to be seen as allowing violent people to walk around armed, or forcing pregnant women to wait until they are on the verge of death before they can receive standard medical care?
And yet that is the real-world dystopia the right-wing justices are creating right now. “People are going to die, and have died, because of their decisions,” Ms. Franks at George Washington University said. She offered a way of thinking about the latest Supreme Court term, which, in addition to some rulings in favor of Donald Trump, included a decision upholding an Oregon city’s ban on homeless people sleeping outdoors.
“You could read this term with the framework of: Who seems vulnerable, who seems powerful?” she said. “Trump is vulnerable; homeless people are not. It’s this strange inverted world.”
