Highland
Park and an Illegitimate Supreme Court
Recent rulings on gun
and abortion rights have revealed a conservative majority executing a
long-standing agenda of radical right-wing ideas.
By Adam Gopnik
Certain ironies are too
bitter to need articulating. They inspire a nonverbal response—one’s head
slumped and held in one’s hands, as one shakes it in disbelief. So it is with
the fatal shootings at an Independence Day parade in Highland Park, Illinois, on
Monday, the latest in the long, unending line of gun massacres that
increasingly decorate American life. This one, which featured a melodramatic
neatness that would embarrass the maker of a “Batman” movie, involved the
superimposition of seventy rounds of murderous gunfire and Fourth of July
fireworks. At this point, Americans are permanently uncertain which sound is
which. Once again, the elusive question of motive—this killer even, in another
awful horror-movie note, disguised himself as a woman as he left his rooftop
perch, to avoid detection—was less important than the trauma that will never
leave the minds of the families or the observers. “I don’t think the average person
has to see a body eviscerated, or a head injury that’s unspeakable, to
understand that,” a doctor who attended the parade and cared for the wounded
said. “They shouldn’t have to see that to understand what the problem is with
this country.”
The
murderer had, predictably, a rapid-fire military-style weapon—of a kind banned
in Highland Park, as they surely are for civilians in most parts of the world.
But bans are of limited use in a country where guns are so widespread. The
question of whether this or that particular gun measure would have stopped this
or that particular massacre is increasingly pointless to pursue. It is the
totality of gun restrictions weighing on the availability of guns that reduces
gun violence. The familiar screams of objections (“It wasn’t an AR-15! It was
an AK-47!”) are a sorry sign of the fetishistic intensity of the crisis; no one
needs to know exactly what make of gun it is to know that it’s the kind of gun
that should never be in the hands of anyone except soldiers. We stop gun
violence by stopping guns, and arguing which gun is which is a way of avoiding
the necessary solution. The solution is simple: every time we restrict access
to instruments of mass killing, we insure the greater safety of our children.
Every time we prevent someone from getting their hands on another gun, we are
making the country safer. Gun control acts on gun violence as antibiotics act
on infections, and as vaccines act on viruses: not infallibly and not every
time, but over all with efficacy and tangible consequences.
The
massacre comes on the heels of the Supreme Court’s decision, on June 23rd, to
make it impossible for New York State to enforce its commonsense measure against
the “concealed carry” of handguns. The decision arrived, of course, the day
before the Court’s right-wing Justices overturned Roe v. Wade, after a half century. In
the two decisions, the conservative Justices showed, of course, a complete lack
of the type of minimal consistency that we identify with good-faith
jurisprudence. In the first, they affirmed the Court’s right to intervene in
democratic decisions made by the States, in defense of a contested
constitutional right; in the second, they affirmed the Court’s complete
inability to intervene in democratic decisions made by the States, even in the
face of a long-settled constitutional right. In one decision, the desire of the
people of New York not to have everyone conceal guns in their waistbands has no
bearing on gun lovers’ right to pack. In the other, the desire of the people of
Mississippi to deprive women of the right to abort their pregnancies is just,
well, the people’s choice. A great American once wrote that consistency is the
“hobgoblin of little minds,” but for credible judges it’s paramount.
One
might deduce that perhaps what the conservatives on the Court want is not
conservatism, nor the pursuit of any particular judicial philosophy, but the
execution of a long-standing agenda of radical right-wing ideas. Various
strenuous efforts have been made to reconcile the inconsistency—the notion, for
instance, that the right to own any gun you like is a right found originally in
the Constitution, whereas the right to privacy is a phantom right, only
recently deduced from it.
The
idea is ridiculous: both are as real and as phantom, it now seems, as the
conservative majority chooses to make them. The right to individual ownership
of guns never existed in anything except the reveries of the N.R.A. until
District of Columbia v. Heller, in 2008. Indeed, the Second Amendment decision
was drawn against the plain sense of the Constitution’s text,
which after all includes the words “well regulated.” The belief, on the other
hand, that an overwhelming right to privacy is implicit throughout the
Constitution isn’t the least fantastical. That concept has long sat at the heart
of democratic life. The idea of privacy is as vital to humankind as the idea of
liberty, which it complements. It is the core of what it means to live as a
free person in a free society. An overriding conception of privacy is at the
heart of the right to contraception, or of the right to marry whom one chooses
instead of those whom the State allows. And it is, of course, no accident that
Clarence Thomas, in his vituperative opinion on the reversal of Roe, points
directly at eliminating those other rights, as well.
The
two decisions and their contradictions clearly undercut the credibility of the
Court. One long legal study of the question insists legitimacy depends, in
part, on the perception that “a Justice should apply her preferred approach
consistently across cases, with candor and in good faith.” No reasonable person
reading the two decisions can believe they were made in good faith. It is
obvious that they were made to suit a fixed political agenda, reasoned backward
from the vengeful results. “How does the dissent account for the fact that one
of the mass shootings near the top of its list took place in Buffalo? The New
York law at issue in this case obviously did not stop that perpetrator,” Alito
wrote, in his concurring opinion on the gun case. It’s the kind of argument one
might expect from a YouTube commentator—“See, they still have knives in
London!”—as though the fact that a law has been broken shows that a law can
never work. By this standard, no law could ever accomplish anything.
Alito and Thomas and the rest were not engaged in a disinterested
scrutiny of rights and rules. They were not acting in good faith, nor trying to
find a consistent line of reasoning. A wiser Court with a more Solomonic
temperament might have prudently sacrificed one decision for the other, in an
effort to at least appear to be consistent. It might have
decided not to issue both decisions in the same week. But it is plain from the
tone and attitude of the Court’s conservative majority that the only temperament
it wanted to display was a regal one—the right to rule by whim. We do this
because we can.
And
so several normally moderate and sensible people—including the
commentator Dahlia Lithwick—have not
hesitated to call this court’s legitimacy into question, and confidence in the
Court is at an all-time low. Yet to speak of the Court’s loss of legitimacy,
we’re warned, is to risk joining with those who subvert democratic institutions
or declare the 2020 election illegitimate.
There
is a vast conceptual difference here, however, called basic fact. The truth is
that, whereas the 2020 election was inarguably free and fair and democratic,
the Supreme Court is—in a straightforward, empirical sense—no longer a
representative institution reflecting, more or less, the will of the American
people. Instead, thanks to the Electoral College and the Senate, two of the
least representative bodies in the federal government, the Court is elevating a
minority view to power through a series of undemocratic measures and actions.
Three current Justices were appointed by Donald
Trump, a man who lost the popular vote in 2016 and now stands
exposed as an avowed enemy of the American constitutional order. That the
conservative majority he created still demands absolute deference would likely
strike the citizens of any other country as bizarre and irrational.
We
speak of six, but in truth it’s clear from his quaking dissents that Chief
Justice John Roberts lives in fear of being the man on whose watch the Supreme
Court loses its legitimacy. He
knows perfectly well that the Court’s legitimacy ought to be on the line when
it makes radical, anti-democratic decisions, guided by religious fanaticism and
sheer bloody-mindedness—that is, the will to get even with your opponents, even
in the face of common sense and with people dying in the streets. Yet,
although we have had indignation from the President, where has the intensity of
passion gone in our politics? The passion felt by people like the Highland Park
doctor, who saw the results of unending gun violence, seems drowned out by
obsessive proceduralism. Pragmatism is a beautiful thing, but meaningless
without principle.
One
of the multiple crises of our time is the “crisis of no consequences.” But the
only way that John Roberts and the conservative majority will feel that the
Court’s legitimacy is on the line is if it is—if they fear the scale and scope
of the reaction to their decisions. As people die in the streets in ever
greater numbers, and as women’s autonomy grows ever more curtailed, calling out
the Court’s legitimacy may be the only way to save it. ♦