Adam Serwer has a smart play in the Atlantic this week, criticizing Supreme Court justices for refusing to disclose their ideological and political agendas. They want to put pressure on a radical, minority conservative agenda while demanding, he writes, “that the public acquiesces in their self-delusion that they are wise men who stand above the vulgarities of partisan politics, even if they win overwhelming victories to a conservative movement and Republican party that have worked for half a century to achieve these victories. As Serwer notes, Republicans have the right to use any legal means necessary to fill the court with enemies of reproductive freedom. What are they not Right to do is both to lie about this project and then to rage inconsistently at those who notice that it has happened. This is why Mitch McConnell cannot both brag about stealing Judge Antonin Scalia’s seat and deny having done so.
For more than two hours on Wednesday, however, that is exactly what Senate Republicans did in a Judicial Committee hearing into the use and abuse of the Supreme Court‘s shadow role. Wednesday’s hearing focused on Conservative judges’ use of unsigned late-night ordinances to overhaul the country’s laws, often with little or no justification, accompanied by minimal briefing and no argumentation. oral. The rise of the shadow docket to abolish COVID restrictions, restore Donald Trump’s policy of remaining in Mexico, and end the Biden administration’s moratorium on deportations is positive proof Republicans have won: they’ve seized enough of seats on the Supreme Court to enforce the law at a faster rate than ever.
And yet, GOP senators don’t just revel in their capture from the court; instead, they insist on enlightening the country on the majestic neutrality of a tribunal that they have spent billions of dollars and decades of political capital to shape. Like the righteous judges Serwer is skewing, Republican lawmakers refuse to take their W. Instead, they want to pretend it never happened. And like the conservative judges, they are thus trying to establish the legitimacy of SCOTUS by denying the takeovers that we can all see with our own eyes.
Wednesday’s hearing was inspired by the Supreme Court ruling around midnight on September 1 to allow a Texas law called SB 8. SB 8 bans abortion after six weeks, but bans officials from the state to apply its conditions. Instead, the measure allows individuals to bring a $ 10,000 lawsuit against anyone who performs or “encourages” an abortion. After spending a year breaking its own rules to freeze the state’s COVID regulations, the Supreme Court ruled that it did not have the power to ban SB 8. By a vote of 5 to 4, the ultraconservative majority – five judges who ignore all procedural hurdles when they are anxious to protect religious freedom – decided that it was simply powerless, for neutral jurisdictional reasons, to protect Roe vs. Wade.
Senate Democrats have called the hearing to consider this decision as well as SCOTUS’s broader abuse of the shadow role. When the House of Representatives held a hearing on the same topic in February, Republicans had yet to decide to pretend this problem didn’t exist, in fact. Instead, several members of the Congressional GOP condemned the court’s secret practices. Over the past seven months, however, it appears the Republican Party has decided to feign outrage at the Democrats’ willingness to question court procedures and claim justice has been served through orders. emergency since the foundation.
The real debate is not about the politicization of the judiciary, but who is allowed to do this.
Wednesday’s hearing opened with Senator Chuck Grassley denouncing Democrats for politicizing what he sees as a long-standing and benign emergency case in order to politicize what he describes as an oracular independent judiciary . (In fact, the court’s use of the shadow role to change the law has exploded since the accession of Justices Brett Kavanaugh and Amy Coney Barrett.) One could be forgiven for forgetting that it was Grassley who claimed that anyone ( and in particular the Chief Justice) who opposed the Republican blockade of Merrick Garland in 2016 was politically opportunistic.
There is no better argument that the GOP believes the tribunal is theirs alone than the bizarre insistence that alone the GOP can manipulate the size, makeup, and agenda of courts, and the horror they manifest when someone other than a Republican launches a criticism Republicans have been fundraising and campaigning against John Roberts ever since more than a decade, by the way, and against the Supreme Court since at least the 1960s. So the real debate is not about politicizing the judiciary, but who is allowed to do so. When Josh Hawley declares war in court (to raise funds), it’s heroic. When Senate Democrats do it, they are cowardly and shameless.
While Serwer is fundamentally correct that judges are enlightening America when they demand blind loyalty to their myth of judicial neutrality, the enlightenment presented this morning therefore goes further: Republican senators who have consistently feigned ignorance. and misled their constituents about anti-choice preferences. of their presidential candidates – it’s Susan Collins on Brett Kavanaugh, Joni Ernst on Amy Coney Barrett – have also argued bluntly for years that the judges they back have never considered the issue. The claim that, as a senator, you can be radically anti-choice personally and professionally, while being completely neutral on Supreme Court neutrality, means that it is not just judges who demand that Americans accept a fairy tale, but so do Senate Republicans. This two-story bad faith is painful to see.
The best evidence of the cynical double talk at this morning’s hearing was, as Senator Dick Durbin pointed out, when Republican senators endlessly offered soliloquies on the sin of abortion. Senator Mike Lee almost cried talking about the blood spilled since Roe deer and Senator Marsha Blackburn insisted to a witness that she could be insensitive to 3D ultrasound. * But the two Republicans witnesses, Jennifer Mascott and Edmund G. LaCour Jr., have not said a word about the merits of SB 8, other than praising its ingenuity. They spoke exclusively, as did the unsigned shadow order at issue, on jurisdictional issues that would have prevented the court from blocking the law. They said nothing about the merits of a law allowing bounty hunters to bankrupt abortion providers and “accomplices.” They didn’t say anything about the property damage to the pregnant Texans. They were simply there to talk about federal jurisdiction.
Their silence fostered the fiction that no serious lawyer thinks the court had no choice but to let SB 8 come into effect. Too bad for Texas’s maternal and infant mortality rate and the lack of exceptions for rape victims. It’s not about your feelings. This divide and conquer was a perfect representation of the sleight of hand: witnesses and judges claiming they had no problem with abortion – it’s just that the court has to follow its rules. Mascott and LaCour have left it up to Josh Hawley and Ted Cruz and Mike Lee to defend SB 8 on the merits: abortion kills babies, and choice advocates are radical freaks who revel in these murders.
This cynical division of labor on Wednesday was crystal clear. The only question is whether the public is ready to swallow the fiction. Steve Vladeck, a law professor at the University of Texas at Austin, contributor to Slate and expert on the shadow case, put the question harshly at the end of the hearing. “The conversation on SB 8 goes far beyond abortion,” Vladeck said. “For all the complaints from members opposite about abortion … this precedent, a universe in which Senator Cruz is comfortable with state legislatures which prohibit the application of constitutional rights which are still in force. force, will not end with abortion. . And a world in which our constitutional rights are nothing more than the whims of 50 state legislatures is not a federal system. It is not a system with the rule of law. And frankly, it’s not a system that’s going to be sustainable in the long run.
It is an encouraging sign that a esteemed law professor and Supreme Court practitioner like Vladeck is prepared to expose this truth to the Senate. And it is encouraging that at least some senators are ready, finally, to hear it.
Despite Vladeck’s warning that the shadow dossier goes far beyond SB 8, some of the GOP senators have gone to great lengths to insist that abortion is not protected anywhere in the Constitution. The idea that the freedom to procreate and bodily autonomy are constitutionally protected has long made the conservative legal movement laugh for decades. As Scalia puts it, the idea of finding constitutional rights in the “shadows and emanations” of the enumerated freedoms is “blah blah blah, junk”.
By the way, a penumbra is the partially shaded outer region of the shadow cast by an opaque object. It takes a certain amount of nerve to worship a phantom role while making fun of the idea of phantom constitutional freedoms. But no more than it takes to spend 50 years capturing the court and then insisting that anyone who believes this has happened is a partisan hack.
Correction, September 29, 2021: This piece originally spelled Marsha Blackburn’s first name.