Resolute Square

Stop Praising The Supreme Court

This experiment called “American Democracy” has officially breached its previously restrained hull, to the point that the Founding Fathers would call for the ship to be abandoned, write Amee Vanderpool.
Credit: Photo by Bryan R. Smith/via Getty Images
Published:June 29, 2023

*Published with the generous permission of Amee Vanderpool. Read all of her excellent work at Shero.

By Amee Vanderpool

We have a real problem with the Supreme Court. The last year has shown us that the conservative majority of the Court is intent on forcing a political agenda on the whole of America that seeks to undermine the Civil Rights of everyone. Additionally, the disregard for ethics and the refusal to properly police themselves have revealed that we have a branch of government that is intent on abusing its overwhelming autonomy in plain sight. This experiment called “American Democracy” has officially breached its previously restrained hull, to the point that the Founding Fathers would call for the ship to be abandoned.

On Tuesday, the United States Supreme Court declined to set new limits for state courts and their review of certain election-related issues by determining that the North Carolina Supreme Court was correct in its ruling that a congressional district map heavily favoring one candidate constitutes partisan gerrymandering.

What is most astounding about this latest decision is not that three Conservative Justices sided with the rational, obvious conclusion of the majority but that three other Justices were readily prepared to overlook the Supremacy Clause. Had this case been overruled, the concept of State’s Rights would have been elevated to a previously unseen level that not only matched the power of the federal government it would have allowed North Carolina to reject higher federal authority established by the Constitution.

The Supremacy Clause of the Constitution of the United States establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority constitute the "supreme Law of the Land" and thus take priority over any conflicting state laws. More simply said, when a state law and a federal law are in direct conflict, the federal law will always be supreme, and when there is a question as to whether federal and state laws conflict, the federal law will always be given preference.

Pro-choice demonstration at Supreme Court
A pro-choice demonstrator holds a placard showing the 6 conservative US Supreme Court justices outside the Supreme Court Building in Washington, DC, on May 5, 2022. (Photo by Jim Watson/via Getty Images)

In Moore v. Harper, proponents of the idea that state’s rights supersede those of the federal government presented a new theory in the “independent state legislature argument.” This concept relies on the language found in the Elections Clause of the Constitution that says election rules “shall be prescribed in each state by the legislature thereof.” While this might seem like a grand concept that should be respected by any appeals court that is focused on the Elections Clause, upholding this theory would mean that state law would usurp federal law in the area of elections.

"State courts retain the authority to apply state constitutional restraints when legislatures act on the power conferred on them by the Elections Clause," Chief Justice John Roberts wrote in the majority opinion. Roberts added, though, that state courts do not have "free rein" when there are conflicts with federal law, and in those situations, federal courts can intervene. While state legislatures are in charge of creating the laws that determine the election laws within their state, the Supremacy Clause prohibits state lawmakers from legislating beyond the rights of the federal government.

Justice Brett
Supreme Court Justice Brett Kavanaugh and Chief Justice John Roberts arrive to hear Donald Trump deliver his State of the Union address in the House Chamber on Feb. 4, 2020 in Washington, DC. (Photo by Leah Mills/via Getty Images)

This statement by Roberts follows basic Constitutional Law and is something that should be easy for any second-year law student to determine. The fact that this recent decision has acted to stop Republicans in North Carolina from further usurping federal power in an attempt to help win the 2024 election is not what we should be focused on. Rather, it is the three Conservative Justices, Thomas, Alito, and Gorsuch, who dissented from the opinion and were willing to favor the Tenth Amendment to the detriment of the Supremacy Clause that should concern us.

While this ruling has ultimately achieved the right result under the law and has protected one political party from taking unfair advantage over another, there are other reasons to examine why Conservative Justices in the majority ruled this way. The first and easiest assumption is to say that they were following the law rationally, which resulted in an obvious conclusion. But, given the extreme nature of this Court in the past several years, and their inability to do this in several other cases, we must look beyond the result and ask what stood to be gained.

This Court has proven it is not interested in abiding by any real ethical standards it had previously held out to the country that it served. When questioned about the standards employed by the Supreme Court, Chief Justice John Roberts — the same jurist who made the rational statement about protecting the Supremacy Clause in this case — defended the Court’s refusal to allow Congress to investigate many ethical concerns declaring, “all of the current members of the Supreme Court subscribe [to a proper approach in ethical matters.]” One rational judgment cannot cause us to overlook many illogical refusals to defend the lack of standards by the Court publicly.

Clearly, the most egregious attempt by the Supreme Court to extend state power under the Tenth Amendment comes from Dobbs v. Jackson, a pivotal case that overturned Roe v. Wade and a woman’s right to an abortion, as well as five decades' worth of established precedent. This was a watershed moment for the Supreme Court in that the overwhelming response against the new law by a majority of Americans has shown the Court how fragile its position truly is.

Following the appointments of Gorsuch, Kavanaugh, and Coney-Barrett, which are seen as illegitimate by many Americans, and the subsequent rulings that emerged, which have further eroded Civil Liberties in the United States, Supreme Court Justices have been under attack both philosophically and literally. In 2022, the Department of Homeland Security (DHS) warned of an increase in threats of violence against Supreme Court Justices, if Roe v. Wade was overturned.

In June of 2022, a California man with a gun and a knife was detained by police near the Maryland home of Brett Kavanaugh after making threats against the Supreme Court Justice. There has also been a barrage of threats made on social media against members of the Court, including the tweet below, which has still not been taken down on Twitter. Considering that these open death threats are so plentiful and still posted in plain view, this could lead us to the conclusion that the authorities are simply busy managing numerous death threats against the Supreme Court Justices following Roe.

The amount of organized and often disorganized protests outside of the houses of several Conservative Justices has also disrupted daily life significantly. Following within hours after the Supreme Court struck down Roe, mass protests started circulating at the Justices’ homes. Dozens of protesters showed up outside Justice Clarence Thomas’ home overnight, chanting, “No privacy for us, no peace for you!” and accusing his wife, Ginni, of being an “insurrectionist.”

The protesters have been targeting Justice Thomas’ home all year, as well as the residences of Kavanaugh, Amy Coney Barrett, Alito, Roberts, and Gorsuch. The one-year anniversary of the Dobbs ruling has only revived public outrage over the decision following a year of state elections in which extremist anti-abortion laws were definitively struck down all over the country.

While the 2024 election will be the biggest barometer of the Supreme Courts' decision to usurp women’s reproductive rights, I would argue there is something much larger and much more frightening driving the decisions of some of these Justices who are appearing to issue reasonable rulings on voting rights. In all fairness, most of the conservative hard work to slash voting rights was carried out in 2020, when the Court and Congress systematically eliminated protections within the Voting Rights Act.

If the Conservative Majority were to impose their ideology on voting rights across the country and further restrict Black voters and voters who have been designated to live in districts that vote heavily with Democrats, the nation would be pushed further to the brink of revolt. All of the diminishing activity of the previous year would resume on a larger scale and present even more safety issues for the Supreme Court Justices.

Justices like Kavanaugh, Coney-Barrett, and Roberts are not swayed as much by the Constitution in their decisions to protect voting rights, as they are simply more aware of the danger posed to them personally if the pressure dial gets turned up any further in this country.

I stand by the statement I made following the ruling in Allen v. Milliganon June 8th of this year, when the Court upheld the voting rights of Black voters in Alabama: “I'd love to say ‘rational heads prevailed’ here, but I honestly feel like Roberts and Kavanaugh are picking their battles because they know their reputations are shot, and they don't want to make more waves that could endanger their positions or lives.”

This latest ruling was another no-brainer that I fear was done as a measure of self-protection rather than elementary jurisprudence. Don’t praise the Supreme Court for simply taking the pulse of the nation and making a savvy decision to pick and choose their battles to protect themselves. The Conservative Majority of the Supreme Court is still only interested in protecting their lives and their positions and controlling the lives of everyone else.