In Case You Were Wondering

In the following age-sorted list^[1], C = member of the conservative wing, L = liberal, M = moderate conservative.

The point being that two of the most regressive Justices are the most aged. I’ve been struck by the number of articles moaning about a new, conservative era of the SCOTUS, and how many generations will be affected, etc etc. But, as I point out in this Word Of The Day post concerning the legal term dicta, SCOTUS decisions need not be permanent:

All I can add is that the conservative justices themselves have demonstrated the solution for the mistakes they’re making: overturning these problematic rulings. The raw political power being practiced here by the conservative wing of the Court has a number of shortcomings in a democracy, while persuasive arguments do not suffer permanently from its inherent problems like raw political power.

Which is not to say that irreversible damage is not done by them, such as women dying of flawed pregnancies, but only that these decisions can be corrected.

And, as the two^[2] oldest conservative Justices are now in their 70s, an age where, well, age starts becoming a concern, it’s not a guarantee that they’ll be around for another twenty years. Or ten years. Or five years.

I wish them all well, but retirement beckons.

The Democrats hold the Senate and the White House, and I expect they’ll be adding to their majority in the Senate in January, if I may indulge in an unconscionably long distance prediction.

I cannot help but meditate on the role of the judiciary in society. To my mind, it is to enforce, correct or void the law for, and, on occasion, lead, the common societal morality. Stare decisis, or precedent, helps build the edifice of wisdom, and should lend stability to the interpretation of the law.

The application of obscure and exotic interpretations does not contribute to that desired stability.

The chart on the right reinforces my belief that most Americans share my interpretation, or would after some discussion. The failure of the conservative wing of SCOTUS to uphold settled law and Constitutional interpretation in Dobbs, Kennedy v. Bremerton School District, Carson v. Makin, and most recently West Virginia v. EPA, in which the right of Congress to expressly delegate its authority is questioned, has led to this situation.

And it also marks a serious intellectual failing of these supposed conservatives: selecting the wrong goal in a liberal democracy.

One of the marks of a liberal democracy is its system of error correction. No mature governmental model should be without such a system, but, historically, nearly all theocracies and absolute monarchies feature leaders, singular or plural, that cannot admit mistakes and failures, at least not as such. Why not? Hey, they’re backed by God, dude! That’s right, and God is never wrong. Autocrats, too, having proclaimed themselves the only one capable of leading, find themselves in a similar constriction, and that’s why these systems of government tend to end in various amounts of tears, rather than a peaceful transfer of power that marks prosperity.

But liberal democracies have error correction, which means a couple of things:

1. The far-right extremists, having overturned Roe v. Wade, have not only proclaimed victory but even think they can contemplate a nation-wide ban. These folks are so far out over their ski tips that they’re tumbling – and they don’t realize it. As noted, these decisions can be overturned; that is, error correction with popular support can be applied. Thomas, et al, believe that SCOTUS is the final word, even as they demonstrate that it is not.
2. The citizenry has the real final word, but the far-right only sort of understands that, as we see in the gerrymandering of Republican-controlled states. If they really understood, they would be making as persuasive a case as possible before SCOTUS rules on each of the issues. In some cases they have, such as abortion. They failed, as public polling clearly indicates, and many folks have applied considerable intellects to the question and come up pro-choice. It’s not unfair to say that the pro-choice solution is the rational conclusion, although I will not say that it’s an easy conclusion. But the bane of a liberal democracy, founded as it is on honest attempts to be rational, are those who are determinedly irrational, depending on little more than easily mislead intuition, or an arguable interpretation of a religious text, itself of dubious authenticity.

This is the heart of the problem with those who call themselves conservatives these days – they don’t understand how liberal democracy works. Their appeal to autocratic traditions are alien to our ways, no matter how much they dress them up in charismatic leaders^[3], or black robes and smoothly written opinions; they break with tradition and sometimes even with the facts on the ground (see Kennedy and Sotomayor’s dissent) to achieve their goals, and the hell with their fellow citizens and traditions of honesty.

Trust in error correction doesn’t mean Don’t worry, but it does mean there’s always a way forward in liberal democracies for those steeped in liberal democracy traditions. If we’re willing to calmly and wisely take that step.

¹ All names and ages taken from Wikipedia. Ages valid only yesterday.

² If we, perhaps ill-advisedly, adjust for expected life span for men vs women, then Roberts joins Thomas and Alito in the top three. However, applying statistics to individuals is always a chancy business.

³ Or so I’m told; generally, I’m immune to charisma.