The Bastard Court
‘Legitimacy’ is transactional.
In the aftermath of December First’s arguments heard in Dobbs vs. Jackson before the US Supreme Court, two — no, three — ”surprises” surfaced. First was a chorus of legal scholars on ‘legitimacy’; second was a map (see above); and third was the word, “stench,” to describe where the Court in early December’s display could be heading.
These ‘surprises,’ to put it bluntly, are not surprises, neither do they fall into prophecies, or jeremiads: America will survive. The pity is that a portion of America won’t…can’t…don’t…nope…nadda’.
And because this portion specifically — in ‘Dobbs vee Jackson,’ as recently rendered — are poor young women of color, residing in 22 states largely, they are, and will go unseen, which places a burden on them, for sure, and for America’s citizenry, future and all.
A map helps.
“Where Abortion Access Would Decline if Roe v. Wade Were Overturned,” describes the disproportion of communities in states regulating access to abortion services. The ‘map’ is a picture of research conducted by teams from Middlebury College, U. of California-San Francisco and the Guttmacher Institute.
‘Equality’ and ‘disproportionality’ are two terms frequently conflated.
A distinction helps.
Whereas the term “equality” presumes that what is equal (or unequal) is observed as ‘comparable,’ ‘disproportionality’ makes no presumption, thus is less transparent, more impervious to sustained apprehension:
“In a nutshell, one of my takeaways from redlining and shootings by the police is that alleviating Black poverty makes Black people less susceptible to ills that disproportionately befall those who are poor — ills which racism surely plays a part, but my interest is in the fact that being poor makes you encounter these things so much more.”
-John McWhorter (cite)
Within the context of equal protection — where state law violates ‘equality’ — the Court will probably defer to apportioning the right to an abortion not to women, specifically poor young women of color.
To whom the Court will apportion the right to an abortion, is the surprise yet to come in June 2022 when the Court delivers its opinion.
A few days after December 1, Adam Liptak, writing in the NYTimes, sketched the terrain of ‘court legitimacy,’ ‘post-Mississippi’ (1):
Questions about the court’s legitimacy are more pitched than they have ever been, said Melissa Murray, a law professor at New York University.
‘Should the court overrule Roe, she added, it will represent a turning point signaling that ‘the court has been weaponized for political purposes.’
But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.
‘The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,’ she said.
‘Overturning Roe, she added, would let states decide whether and when to allow abortions. ‘The court would enhance its credibility and legitimacy as a judicial rather than a political body,’ she said, ‘if it returned the question of abortion regulation to the people.’
In April, 2021 President Biden convened a Commission on Recommending Changes to the Supreme Court. The “final draft,” whatever this means, was released December 6, with review, approval and “final release,” late December.
A read of the executive summary reveals the ‘politically expedient,’ meaning the report draws no conclusions nor puts forth any recommendations. Specifically, the report doubles down on ‘inconclusiveness’: the report politely demurs on a path forward except to claim that probably any changes proposed to the “design” of the Court are risky, presumably to the public appreciation of the Supreme Court’s decision-making.
This we knew. As one Commissioner, Prof. Laurence Tribe concluded, ‘It’s (the Court’s politicization) so bad, any change is worth the risk.’
By failing to make the connection between legitimacy and disproportionality, Mr. Biden has abandoned the abandoned. And if the Commission’s ‘Final Conclusive Report’ ends up “kicking the can down the road,” (cite Caren White, Medium), Mr. Biden has risked delegitimizing the Office of the President as well.
This brings one to contemplate ‘legitimacy’ and ‘stench.’ One validates observation (legitimacy), the other follows experience (stench):
Will this institution survive the stench that this (overturning Roe v. Wade) creates in the public perception that the Constitution and its reading are just political acts?
-Justice Sonia Sotomayor, December 1
Call this ‘right wing activism’ (2); call it what you wish. It stinks.(3)
‘Stench’ not only permeates. ‘Stench’ lingers and this is the force of Sotomayor’s assessment of where the court as an institution is headed.
An observation helps.
The four “pillars” of the Bill of Rights of the US Constitution are freedom of speech, assembly, religion and of redress or petition. The right of redress, the freedom to sue the government for harm and loss, to “restore” rights denied citizens, is one of the least understood freedoms singled out in the Bill of Rights, which found its way into Article One. Indeed, in a judicial variation of a “Freudian slip,” Justice Barrett failed to recall the ‘right of petition’ during her Senate Approval Testimony.
She had to be prompted.
This ‘approval moment’ does not bode well for a ‘nation of legitimacy.’
Which bring one to contemplate the linkage between ‘legitimacy’ and disproportionality.
If we don’t acknowledge ‘disproportionality,’ our reasoning in defending equality falls short of principle, which in the end is what the current discussion of ‘the court’s ‘legitimacy’ is about.
‘Legitimacy’ is transactional.
1-”Critical Moment for Roe, and the Supreme Court’s Legitimacy,” December 4, updated December 6.
2-”For decades conservatives have argued that Roe amounted to judicial activism announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.
“Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.” ibid.
3-”How intelligent is the Supreme Court?” by Rodney Clough, Medium