The Supreme Court’s recent upholding of the Muslim Ban is significantly worse than a mere “unconstitutional” violation of “religious liberty.” Indeed, the problem is precisely that it is not those things; it is entirely justifiable on legal grounds while also being plainly evil. It is, therefore, not a mere failing of the present composition of the Court, but an indictment of its very existence.
Arguing against something by calling it “unconstitutional” is facile in the best of cases (as with laws and standards in general, the mere existence of something says nothing about whether it’s right or wrong. Slavery was constitutional for a pretty long time), but here it’s just plainly false. What the constitution actually says about religion is the Congress shall make no law respecting its establishment. The executive branch is not Congress, and an executive order is not a law. In fact, the Constitution doesn’t really say a whole hell of a lot about any constraints on immigration policy, which is part of why various governments have pretty much made it up as they’ve gone along. We’ve had quotas before, you know. And in the absence of explicit legal standards, questions such as whether a face-neutral policy that was clearly motivated by religious resentment qualifies as “religious discrimination” or whether a particular action is justified in terms of national security ultimately have to be judgment calls.
Of course, this isn’t a slam-dunk case in favor of the ban, either. Just because an action is within the purview of the executive doesn’t mean that any such action is beyond reproach. And this is precisely the issue. As long as there is not a specific law addressing the exact case in question, the Court is, in a very fundamental sense, free to do as it wishes. And they’re not actually required to adhere to precedent, either, so ultimately the only thing preventing any given case from descending into a free-for-all is personal restraint. The question of whether to ban Muslims becomes simply the question of whether five lawyers want to ban Muslims.
Obergefell is an even clearer example. Scalia was entirely correct that the case was decided not because a particular decision was required by existing law, but simply because the majority wanted to legalize gay marriage. The reason he was full of shit is that the exact same argument applies to his own opinion. While he claimed that he didn’t care either way about the political question, the argument at issue was that gay people have the right to get married, so what this actually means is that he believed that gay people did not have such a right. This is exactly as much of an ideological position as Kennedy’s was – the only difference between the two is that Kennedy was a mushhead while Scalia was a liar. The only way to decide the case was to bring in a political opinion from outside existing law, and that’s exactly what both the majority and the dissenters did.
Given what’s been happening, this might seem obvious enough, but the problem is that it completely delegitimizes the existence of the Supreme Court, as such. That is, it is not the case that the Court is now illegitimate because it has become politicized. Its very conception is illegitimate a priori.
The reason the Supreme Court is an undemocratic and unaccountable body with lifetime membership is precisely because it is not supposed to address political questions. Its composition is explicitly intended to be unresponsive to democratic pressures. It’s supposed to be a technical institution, which is why it’s the only one staffed by actual professionals. And as far as the typical nitpicky lawyer case about whether a taco counts as a sandwich goes, this is all well and good. Cases with defined legal standards and without obvious political implications can in fact be adjudicated technically, by field experts.
But, while there are many such cases, their existence is ultimately a coincidence. Laws affect real-world material outcomes, so there’s never actually an “apolitical” law. It’s just that in some cases the political effects are narrow or obscure, and in others they’re obvious and far-reaching. In some cases, a legal question about whether a particular standard for operating a medical facility is justified is a simple technicality, while in others it is a fundamental judgment about whether abortion should be accessible or not. What distinguishes these cases is not the law itself, but the social circumstances surrounding it, which is why this problem is unavoidable. You can’t pick only the “non-ideological” cases for the Court to hear, because it is not the case itself that determines its political significance.
Thus, it is necessarily the case that the Supreme Court cannot function as intended. The question of whether this or that judge is a “moderate” or an “ideologue” is entirely beside the point. It is a logical impossibility. There will always be some number of cases whose outcomes are unavoidably political, such that the only way to judge them will be on the basis of political ideology. Which is exactly what happens.
It is important to emphasize, repeatedly, that this is not a matter of “corruption” or “decay” or “extremism” or what the fuck ever. It’s a matter of design. The “Founding Fathers” fucked this up: they designed a system that can’t work as intended, because they weren’t smart enough to figure out the stuff that I just described. I obviously have the benefit of hindsight, but wrong is wrong, and the design of the United States government is in this respect objectively wrong. You’re not going to get anywhere until you give up your childish fantasies about the “wisdom” of “great men” and start looking at how things actually function.
Except that’s not quite true either, because, despite the fact that the actual operation of the government today is quite far removed from how it was when it was first designed, there’s a significant sense in which we really do have the society that the founders wanted. “Democracy” for them meant something completely different than it does to us – there’s a reason they felt no compunctions talking big about it while denying the franchise to the vast majority of the population (and also raping slaves). What it meant for them was, rather than the rule of a specific class of elites (royals), rule by the elites in general. Non-elites did not, for the sake of political representation, qualify as people.
The reason we have a society dominated by businessmen and lawyers is that the founding fathers were businessmen and lawyers who wanted to dominate society. That’s the order they created, and it’s the order we still have today, with the Supreme Court acting as one of its most powerful enforcers. So, from one point of view, the founders were even wiser then they’re given credit for: even after thoroughly misunderstanding, distorting, and bastardizing their vision, we’re still pretty much doing what they wanted. (On the other hand, creating a new order just to re-replicate the same patterns that have existed for all of human history isn’t, like, particularly impressive.)
To be fair, though, there really isn’t a solution to this problem. If you have a society of laws, you do have to have some sort of body for adjudicating them, and doing so is unavoidably going to be a political endeavor a lot of the time. The solution for us, though, once we’ve cleared away the obfuscating fog, shines though with painful clarity. Because the Supreme Court cannot ever be relied upon for anything, it must never be the case that it matters at all to our political activity. The whiny liberals screeching about how important it is to Vote Democratic for the sake of the Supreme Court have it exactly backwards: if all you can rely on to advance your agenda is friendly judicial rulings, you have already lost. You are relying solely on rearguard actions that will never allow you to claim new territory.
The looming fate of Roe is the perfect example here. The only reason that decision matters is that abortion is already inaccessible, so its technical legality is the only thread it has left to hang on to. By contrast, this isn’t a problem for birth control in general. The same zealots would also love to ban birth control, but that aspect of their cause is a complete non-starter, because the battle for birth control has already been won. It’s a normal thing that everyone uses openly in their daily lives. Despite noble efforts from many quarters (well, one quarter), the same cannot yet be said of abortion. But that’s the only way to actually resolve this; a technical legal argument in favor of abortion doesn’t do anything for anybody. Avoiding the fight by adhering to the garbage status quo is a coward’s plan. The only moral option is to win the war.
Also, we really need to admit that Roe was a shit decision in the first place. Establishing a touchy-feely sort-of-right to abortion that came with built-in restrictions ensured that actual access would inevitably be chipped away by a bunch of bullshit pseudo-regulations while obligating absolutely no action toward helping people actually utilize their supposed rights. The correct decision is for abortion to be established as a positive right that the government is obligated to provide, based on the fundamental right to bodily autonomy – which is not enumerated in the Bill of Rights. Also, this is identical to the argument for universal health care, which is the only workable way to implement it. The Constitution won’t tell you any of that, though. You have to figure it out for yourself.
Jurisprudence is not going to save you. The political institution that is responsible for the advancement of values is you.