Do We Consent to Minority Rule? A Perspective on the Supreme Court’s Legitimacy Crisis

As a young Black attorney and member of DSA, I couldn’t help but notice that the right wing smear campaign against critical race theory has coincided with a vivid demonstration of the movement’s most central idea: The Supreme Court is not comprised of “neutral arbiters” who merely apply law to the facts (or “call balls and strikes” as John Roberts famously remarked in his confirmation hearing), but rather ordinary people with preconceived notions, subjective political beliefs, and biases like you and me.  Indeed, empirical evidence supports what critical scholars and marginalized people have known for centuries: Judges rule based on their personal beliefs and policy preferences, even when they are contradicted by the relevant facts and law.  

All six members of the new conservative majority on the Supreme Court belong to an organization called the Federalist Society, which was formed to fight against the progressive judicial victories of the ’60s and ’70s, including, the rights to contraception and abortion, the partial integration of public schools, and the legalization of interracial marriage.  Indeed, the animating purpose of the Federalist Society is to force its deeply unpopular and reactionary agenda through the judiciary, where it is insulated from popular will and can be defended as the inevitable product of neutral, legal reasoning.  As a result, the flagrant illegitimacy of the Supreme Court’s recent actions have caused public confidence in the Court to fall to a historic low of 25%, dropping a staggering 11% over the course of the last year alone.

Because the Supreme Court has no power or authority to enforce its own rulings, it,  more than any other branch of government, derives its power from its perceived legitimacy and mass appeal. The Court has always claimed neutrality in its application of the law, but U.S. liberal democracy has been shaped by popular movements for civil disobedience. The most well-known example being Brown v. the Board of Education, wherein the Court unanimously struck down de jure segregation, in response to pressure from the burgeoning Civil Rights Movement and their international allies. These campaigns are retroactively treated as justified, and the folks who participated are retroactively embraced as heroes, yet, each successive generation is asked to accept that any further civil disobedience would be unreasonable.  The time has come to decide for ourselves whether or not we accept the actions of this Supreme Court as reasonable.

Not for No Reason

To address all of the legal and ethical improprieties and inconsistencies of the conservative majority on the Supreme Court is beyond the scope of this article, but here are a few notable examples.

In Massachusetts v. EPA (2007), the late Antonin Scalia wrote a dissenting opinion, joined by Clarence Thomas, Samuel Alito and John Roberts, taking the position that the Court must defer to the expertise of the Bush administration’s Environmental Protection Administration, no matter how big the question at issue.  This is the exact opposite of the position taken by these men in West Virginia v. EPA, in which they joined the majority opinion in holding that the Court has virtually unlimited veto power over any decision made by the EPA (or any other executive agency), if they decide it has sufficient “economic and political significance.”  

The political activities of Clarence Thomas and his wife, Virginia (“Ginni”) Thomas–a far right political activist and lobbyist whose consulting firm gets paid to advance the conservative line on gun rights, affirmative action, reproductive rights, etc.–provides clear evidence of political corruption. Among a stunningly long list of misconduct, the incident that most clearly demonstrates the insidious nature of this partnership is as follows:  Ginni Thomas is on record as having participated enthusiastically and effectively in efforts to overturn the 2020 election on January 6th.  Rather than recusing himself, he provided the single vote to block the release of relevant White House records (containing dozens of incriminating text messages and emails from Ginni Thomas). Decades earlier, sometime after Clarence Thomas voted to hand the 2000 election to George W. Bush, Ginni Thomas was rewarded with an influential position collecting resumes for the Bush administration’s transition team. Perhaps unsurprisingly, Clarence Thomas has repeatedly failed to disclose payments made to his wife by political organizations, even those with a direct stake in Supreme Court litigation.  

Although Clarence Thomas is in some ways the most obviously corrupt, he shares much in common with the other conservative Justices.  Brett Kavanaugh, like Thomas, has a history of shady financial disclosures and credible accusations of sexually predatory behavior against women.  Somewhat predictably, Kavanaugh’s first job out of law school was clerking for Reagan appointee, fellow Federalist Society member, and reviled serial sexual abuser, Judge Alex Kozinski.  These activist judges are happy to codify their personal beliefs in the law, even when doing so is clearly illegal.  The most recent example being Dobbs v. Jackson Women’s Health, wherein Justices Kavanaugh, Barrett and Gorsuch were so desperate to deliver for the Federalist Society that they perjured themselves by joining the majority and placed the U.S. in violation of both the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

The Federalist Society

The Federalist Society’s strategy is not novel or unique, even within the context of recent U.S. history.  Indeed, the institutions responsible for producing and maintaining hierarchy (described by the late activist and scholar bell hooks as “imperialist, white supremacist, capitalist, patriarchy”),  have historically rested their claims to legitimacy on compliance with the law.  Unjust and discriminatory laws in turn are justified as neutral, while the victims of these laws are blamed for their own suffering.  The Supreme Court has always played a central role in spreading and legitimizing the ideologies that do so.

As noted by Michelle Alexander in The New Jim Crow, as the form (but not substance) of oppressive laws changes over time, so do the ideologies that justify them; during the antebellum period, the Court relied on the idea that race hierarchy reflected a divine order made manifest by the continental separation of races; during Jim Crow, the Court relied on eugenics to frame segregation as “separate but equal,” while implying that the “inferiority” of segregated, under-funded, and over-policed Black communities was due to the “inferiority” of Black people rather than the result of obvious material disadvantages.

Today, the Supreme Court appeals to those same principles to justify its unpopular, often illegal, and wildly reactionary agenda. Indeed, how else can one justify forced birth in a country where the average cost of giving birth is between $4,000 and $15,000 dollars, but the average family can’t afford a $500 emergency expense; where Black folks die during child-birth up to eight times as often as white folks; where gun violence is the leading cause of death among children and teens; and where one out of every four children put in the foster-care system – hailed by Justice Barrett as a simple alternative to abortion –  develops post-traumatic-stress-disorder

What is to be done?

The Constitution offers only one remedy for misconduct on the Supreme Court: impeachment.  Congresswoman Alexandria Ocasio-Cortez, joined by her colleagues Jamaal Bowman, Rashida Tlaib and Cori Bush, in turn, are leading the national conversation in calling for the expansion of the federal judiciary and demanding the impeachment of Justice Clarence Thomas (for corruption), Justice Kavanaugh (for lying under oath about his prior alcohol abuse and sexual misconduct), and Justices Gorsuch and Barrett (for lying under oath about their willingness to overturn Roe v. Wade).

While the Constitution provides only one remedy, history provides an alternative.  The night before Martin Luther King, Jr. was assassinated, he told a crowd of striking sanitation workers, “When we have our march, you need to be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.”  Today, following an unprecedented and ongoing wave of socialist and progressive victories throughout Latin America, victorious feminist movements (wearing their storied green bandanas) are working to protect their new reproductive rights.  As labor unions and local DSA chapters in Wilmington, North Carolina; Western Montana; Washington, D.C.; Seattle, Washington; Atlanta, Georgia; Tidewater, Virginia; and beyond, have led early resistance efforts, these same green bandanas have become a regular feature at marches in support of reproductive rights in the U.S.

Another core tenet of critical race theory is that progress is not linear or inevitable.  History shows that every advance for marginalized people in this country is followed by a period of vicious backlash.  More importantly, history also shows that we always fight back, and when we fight together, we win.  As James Baldwin once said, let your suffering be a “bridge” that connects you to others, as we work together to build a political mass movement to fight for reproductive justice, democracy, and socialism.