The post-truth Supreme Court.
Jun 28, 2022
[Audio version here]
On a day with multiple stories of significance, it is challenging to decide which story will be the most consequential. I will start by discussing the story with the most immediate impact (developments in the January 6th investigation) but urge readers to give due consideration to the story with the longer-term consequences for our republic (the loss of legitimacy of the Supreme Court).
On Monday, we learned that the FBI seized and searched the phone of Trump’s coup‑counselor-at-law, John Eastman. The subpoena was issued by the DOJ Inspector General’s office, which is charged with internal investigations of possible government corruption. Hmm . . . given that Eastman is Trump’s outside lawyer, who could be the subject of an “internal investigation” involving corruption at the DOJ? All signs point to Trump, although Eastman’s phone was seized on the same day that the FBI served a search warrant on former DOJ official, Jeffrey Clark.
The search warrant issued to Eastman recites that the DOJ established “probable cause” to seize the items—which requires a finding that the items contain possible evidence of a crime. Although this is good news for those hoping that Trump will be held accountable for his crimes, the fact that the subpoenas come from the DOJ’s Inspector General’s office is curious. The IG’s office cannot impanel a grand jury to seek an indictment, but it can recommend that the DOJ do so.
In other surprising news, the January 6th Committee announced a “surprise” hearing scheduled for Tuesday, June 28, 2022, at 1:00 PM Eastern / 10:00 AM Pacific. You can watch the hearing live at the Committee’s website: 06/28/2022 Hearing of the Select Committee Hearing. In a town known for leaks, the Committee has maintained secrecy about the nature of the “recently discovered evidence” and the identity of a live witness.
Commentators are warning that the Committee’s presentation “better be a big deal.” Such comments treat the Committee’s hearings as “reality t.v.” rather than an exposition of a plot to overturn an election. Any evidence that touches on that plot is “big”—or “big enough” to be taken seriously without regard to its entertainment value. But, to the Committee’s credit, the manner in which it has presented evidence to date has made a complicated situation understandable to the American public. Let’s hope that the new evidence sheds more light on the truth.
Another blow to the Supreme Court’s credibility and legitimacy.
On Monday, the Court’s reactionary majority overturned another long-standing precedent. In Kennedy v. Bremerton School Dist., Justice Gorsuch reversed a 1971 case (Lemon v. Kurtzman), which held that the “principal or primary effect” of government action “must be one that neither advances nor inhibits religion.” In the 1971 Lemon case, the Court ruled that a school could not conduct public prayer at graduation. In the Kennedy case decided today, Justice Gorsuch ruled that a public high school must allow a football coach to engage in “private and quiet” prayer at the 50-yard line after a game.
As with Dobbs, the opinion of the reactionary majority is shoddy and result-oriented. But the most troubling aspect of Gorsuch’s opinion is that Justice Sotomayor accused Gorsuch of “misconstruing the record” to reach the intended result. Here is what Justice Sotomayor said:
As the majority tells it, Kennedy, a coach for the District’s football program, “lost his job” for “pray[ing] quietly while his students were otherwise occupied.” The record before us, however, tells a different story. . . The [majority’s] analysis of coercion misconstrues both the record and this Court’s precedents.
In her dissent, Justice Sotomayor includes a photograph of the supposed “private and quiet” prayer that Gorsuch found acceptable. See the photo in the Sotomayor’s dissent at page 45 of 75 of this PDF: Kennedy v. Bremerton School Dist. As is immediately obvious, there is nothing “private or quiet” about the large gathering of football players kneeling at the foot of the coach on the 50-yard line, who is holding a player’s helmet aloft.
So, what? Does a dispute over the characterization of the facts in an opinion by the Supreme Court really matter? Yes. If the decisions of the Court are to have legitimacy, the Justices must at least agree on the facts. But deliberately “misconstruing the record” is a grave judicial error that discredits the Court. A simple comparison of Gorsuch’s description and the photograph in the record shows that Gorsuch committed the grave error of misrepresenting the facts to the American public to justify overturning a precedent that has stood for 50 years.
For excellent discussions of the decision, see Ian Millhiser in Vox, The Supreme Court hands the religious right a big victory by lying about the facts of a case, and Mark Joseph Stern in Slate, Coach Kennedy ruling: The Supreme Court lies to repeal separation of church and state.
Justice Sotomayor politely said that Gorsuch “misconstrued the record”—“judicial‑speak” for lying, as is made clear in analyses by Millhiser and Stern, above. The offense is particularly unfortunate coming from the mouth (or pen) of Justice Gorsuch. Senators Collins and Manchin have suggested that they were “misled” by Gorsuch and Kavanaugh during their confirmation hearings. See NBC News, Collins and Manchin suggest they were misled by Kavanaugh and Gorsuch on Roe.
The unofficial mouthpiece for leaks from the conservative majority, The Wall Street Journal, writes that neither Kavanaugh nor Gorsuch “promised” not to overturn Roe v. Wade. That is, of course, literally true but morally irrelevant. Suppose your teenager asks for your car keys to drive to a party and you say, “Don’t drink and drive,” and the teenager says, “Don’t worry; I will be safe.” If your teenager then drinks and is arrested for DUI on the way home, did your teenager “break a promise?” According to the Editorial Board at the Wall Street Journal, he did not. But your teenager misled you—which is the moral equivalent of lying.
There is a point to my rambling and prosaic discourse on Gorsuch’s opinion in Kennedy v. Bremerton. Here it is: We have no reason to believe what members of the reactionary majority say to the American people. That matters because Alito said in Dobbs that same-sex marriage is not threatened by his “deeply rooted in American tradition” test. But in Obergefell (which recognized same sex marriage), Alito said exactly the opposite when he argued that same sex marriage should not be recognized by the Constitution. Alito wrote in his Obergefell dissent,
“Liberty” under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition.’ And it is beyond dispute that the right to same-sex marriage is not among those rights.
So, was Alito writing in bad faith in Dobbs or Obergefell? If he truly believes that “same-sex marriage” is not “deeply rooted in American tradition,” as he said in Obergefell, why is that right not at risk under the legal rationale adopted in Dobbs?
Alito claims that same-sex marriage is different than abortion because “life or potential life” is not terminated in same-sex marriage. While that is a difference between abortion and same-sex marriage, it is not a difference that matters to the “deeply rooted” legal analysis in Dobbs. At least Justice Thomas had the decency to admit that fact in his concurrence by stating that the Court should reconsider same-sex marriage, same-sex relations, and contraception under Alito’s “deeply rooted” rationale for overturning Roe.
So, no. We have no reason to trust Alito, Gorsuch, or Kavanaugh. They have dissembled about matters of overarching importance to hundreds of millions of Americans. In doing so, they have destroyed the credibility of the Court and the legitimacy of its rulings. We are living with a “post-truth” Supreme Court. That fact was made abundantly clear again today when Justice Gorsuch misrepresented the facts of a case to justify overruling a long-settled precedent. There is only one path available to Democrats seeking to reform the court: Adding five members to override the reactionary majority.
Talking about Dobbs.
In all candor, I cringe every time I write about Dobbs. I am not a woman who has been told that the most fundamental aspects of her personhood are now controlled by the state. Without that lived experience, one could reasonably question why I—or any male—should presume to pontificate on the effect of Dobbs. That is a fair point I struggle with every time I write about Dobbs. So, I want to take a moment to caution all commentators writing about Dobbs (including me) not to repeat the chauvinistic error committed by Alito in his opinion.
In drafting an opinion that should have turned on a delicate and excruciating balance of between the state, a fetus, and a woman, Alito barely mentioned the life-altering consequences on the woman of being forced by the state to give birth and raise a child. Alito’s omission is addressed by Philip Rotner in his essay, The Supreme Court’s Murder Suicide Pact In Overruling Roe v Wade. Rotner writes,
Alito dismisses that issue [the effect of a forced delivery and raising a child] – which should be at the heart of any discussion of the correctness of Roe – as not even worth discussing. He swats it away in a single pathetic paragraph:
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. . . Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”
Got that? Alito believes that recognizing autonomy over giving birth and raising a child is a concept at “a high-level of generality” that could lead to decisions recognizing illicit drug use, prostitution, etc. To say the least, Alito “doesn’t get it.” In truth, Alito doesn’t care about the burdens imposed on women for reasons known only to him. But it is a grotesque oversight that invalidates everything else he writes in Dobbs.
So, too, with commentators discussing Dobbs. The opinion is not a law-school hypothetical or a clash of legal principles. If any discussion of Dobbs does not recognize its life-altering assertion of control of the state over reproduction and personal autonomy, the discussion is mere sophistry. Dobbs has instantly demoted the legal status of 150 million American women. Even for women who live in a state that recognizes the right to abortion, the state could—if it wanted—choose to exercise dominion over women’s autonomy in the future. The existence of that contingency marks women as a disadvantaged class of Americans.
So, to all of my fellow male commentators explaining why Dobbs is (or isn’t) so bad, I urge you to start and end your analyses with the impact of the decision on the lives of women in your family, workplace, community, congregation, and nation. If you fail to do that, you have no understanding of the holding in Dobbs, and, like Alito, you invalidate everything else you have to say on the subject.
In that regard, I want to remind my readers of Jessica Craven’s excellent blog, Chop Wood, Carry Water. Jessica is on the front lines every day, but especially so in the aftermath of Dobbs. She urges us to action while expressing her sense of outrage from a vantage not available to me. Her column today is especially good.
I remember the morning of 9/11. As Manhattan was reeling from the horror of two commercial jetliners slamming into the World Trade Center, some federal judges in Los Angeles indignantly issued orders telling lawyers they “had better show up” for hearings scheduled that morning or they would be fined. In retrospect, the judges were slow to understand the magnitude of the tragedy that had struck the nation. They lacked the imagination to see beyond the immediate facts—two planes hitting a building in Manhattan—to understand that the US would forever be divided into “before” and “after” 9/11.
I think we are in a similar stage of denial and lack of imagination regarding Dobbs. Or at least some Americans are. It will take some time for Americans to understand that the US will be forever divided into a “before” and “after” Dobbs. Even if we can reverse Dobbs, which I firmly believe we can do, we will never regain our trust in a Supreme Court that surrendered so easily to naked power and hubris.
The first signs are emerging that Americans are awakening to the threat of a weaponized Court and a political party that wants to dictate whether you take birth control, who you can love, and when you must raise a family. Several polls have noted an uptick in general preference for Democratic congressional candidates in 2022. While that is encouraging, it is no cause for celebration—only a reminder that we can change the hearts and minds of Americans if are organized, dedicated, and unflagging.
The full horror of Dobbs will unfold over time. We may not win everything we want or need immediately, but we will do so over the long term. No victory is too small, no office is unimportant. It will be a long journey back. But the good news is that our return journey has already begun, and we are seeing the first stirrings of a second era of civil rights for all Americans.
Stay strong! Talk to you tomorrow!
Post-script: As I began to prepare this newsletter for publication, I saw the horrific news of 46 migrants who died in a truck near San Antonio. This is a horrible tragedy that I will address tomorrow.