God Damn the Supreme Court!

 

God Damn the Supreme Court!

August 7, 2022

 

I wrote this piece a while back, I think right after the US Supreme Court overruled Roe v. Wade. I never typed it up or posted it. I’m not sure why not. Maybe I thought its tone was too angry. Well, today’s Supreme Court gives us lots to be angry about. So, here it is.

 

God damn the United States Supreme Court! Not all of it of course. Justices Kagan, Sotomayor, and Brown Jackson are right on every issue on which the extremist conservative majority is so horribly, horribly wrong. Yet all the three decent judges on the court can do is write scathing dissents against the ideological, destructive decisions of the majority. So God bless the conscientious three, and God damn the uncaring, reactionary six. I am not a lawyer, but I have a law degree; and I practiced law for over twenty years before changing professions. I have disagreed with Supreme Court decisions before, but I have never been nearly as angered by the court as I am today and have been for quite some time. I write this piece to express that anger and analyze at least some of the dynamic that is causing the court’s majority to issue such horribly wrong and damaging decisions.

We have known for a long time that right-wing political forces in this country have schemed to remake the Supreme Court in their own image. They have long known that a substantial majority of Americans oppose their narrow, prejudiced, policies grounded in ideology rather than in the public good. Yet they have also known that the federalist system of the United States Constitution gives disproportionate power in both the electoral college and the United States Senate to small population states. They have known that those states are far more supportive of political reactionism than are states with larger populations. So they have known that, although they are a minority of the American people, they had a chance to elect a president and a Senate majority that would genuflect before their unintelligent, reactionary Christianity and do their will. They have cared, and care, not at all that most Americans find their policies utterly unacceptable.

Ever since the Supreme Court decided the case of Roe v. Wade in 1973, right-wing Republican political candidates have promised their extremely conservative base that they would nominate and confirm justices to the Supreme Court who would overrule that landmark case. Roe stands, now tragically stood, for the equality and personal autonomy of American women, something the supposedly-Christian right cannot stand and wishes to restrict as much as possible. Decade after decade the Republicans these people elected failed to deliver on that promise. Then Donald J. Trump, an utterly unqualified, personally reprehensible New York real estate wheeler dealer lost the popular vote in the 2016 presidential election but became president anyway because of the Constitution’s federalism. Mitch McConnell, the perfectly partisan, obstructionist senator from the relatively small population state of Kentucky, became majority leader of the Senate. The Senators of the Republican majority represented far fewer people than did those of the Democratic minority, but it didn’t matter. Mississippi has as many senators as California, and it makes no difference that the population of California is more than ten times larger than that of Mississippi. Such are the wonders of American federalism. Through the death or retirement of Supreme Court justices, Donald Trump was able to nominate three woefully unqualified, ideologically inclined justices to that court. McConnell and his Republican majority in the Senate confirmed those nominations despite the fact that it was obvious to anyone not mentally hamstrung by conservative ideology that they had no business serving on the highest court in the land. The evangelical American right finally had what the Republicans had long promised them, a Supreme Court that would overrule Roe v. Wade, and overrule it that court did.

That’s court’s most recent term was by far the most destructive Supreme Court term in living memory. Its decisions were perhaps the worst Supreme Court decisions ever save for the Dred Scott case and Plessy v. Ferguson. In its most recent term the court finally overruled Roe v. Wade. thereby taking a constitutional right away from the American people, something the court had never done before. It weakened the separation of church and state when it let a public high school football coach pray at the center of the field after a game, never mind the pressure to join him his doing so undeniably put on his players. It made Americans less safe by overturning New York’s reasonable and necessary regulation of firearms. It also handcuffed the federal government in its efforts to respond to the current climate crisis and probably in any of its regulatory activity. Never in my wildest dreams could I ever have imagined a Supreme Court as dangerous and destructive as this one.

The court’s reactionary majority cloaked each of these disastrous decisions in a robe of legal reasoning, Yet each of those decisions is more ideological than legal. No Supreme Court at least in modern times has acted so ideologically with such a thin layer of legal rationale laid upon top of purely political decisions. I won’t bother here to do a legal analysis of each of these cases and their legal failings, for they aren’t grounded in law but in reactionary ideology; and their destructive effects are obvious to anyone with an open mind and a caring heart whether one has legal training or not. In depth legal analysis is hardly necessary to make the wrongness of these decisions apparent.

To get at least a beginning understanding of this Supreme Court, we begin with an understanding of courts and the law that the popular media often seem to lack. On the one hand, it is not the function of any court to implement or even to be influenced by public opinion. Especially in the realm of constitutional law, but really in all if its functioning, the role of a court, especially an appellate court, is to determine what the law applicable to the case before it is and to apply that law to the case. Especially when it comes to the specification and application of law relating to individual rights, the law must disregard public opinion and apply the law to protect those rights from any public consensus that would dispose of them. That public opinion strongly opposes most of the current Supreme Court’s decisions in no way, in itself, makes those decisions wrong.

On the other hand, a court must consider the effect its decisions will have on its legitimacy with the American people. No court, not even the Supreme Court, has any power to enforce its decisions. Those decisions have effect only if the American public and the country’s institutions recognize those decisions as legitimate and binding upon them. Because it has made unpopular decisions on a range of subjects of vital interest to the American people, and because those decisions are so obviously wrong, the current Supreme Court is putting the legitimacy of the court in serious question. Even some of that court’s justices have recognized this danger.

One way to understand how the decisions of this court are wrong and how they impact the legitimacy of the court is to wade into the swamp known as “hermeneutics.”[1] Hermeneutics is a swamp because few people have ever heard of that academic discipline, and fewer understand it. Yet hermeneutics is important in any field that involves the interpretation of written texts. We learned hermeneutics in seminary because it is absolutely necessary for the interpretation of religious texts like the Bible. Though I never heard it mentioned in law school, It is equally important in the field of law.

Hermeneutics is the theory of interpretation. It applies to anything that requires interpretation. Now, if you’re like most Americans, you probably think that all you have to do to understand any writing is to read it. You probably think that a writing, or at least any honest one, says what it means and means what it says. Well, I’m sorry (actually I’m quite happy) to disillusion you. All reading in interpretation.[2] Any text in itself is just markings on a piece of paper or other surface. Those markings in themselves have no meaning. They just sit there doing and meaning nothing, something that is also true of this text of mine that you are currently reading. Those markings mean something only when a reader reads them. The text’s meaning arises in the encounter between the reader and the text. That it does means that a text can mean different things to different people at different times. Those different meanings are all legitimate unless the reader departs too far from the text itself in interpreting it. It matters not that a reader may find a meaning of a text different from the meaning the text’s author intended. An author loses control over her text as soon as someone other than she reads it.

There is, unfortunately, this complication that we must consider. There are two basic hermeneutics, two basic theories of interpretation. We must understand both of them if we are to understand two basic theories of interpreting the constitution, both of which are represented on the Supreme Court today. One is what I have called the “modernist hermeneutics.” This approach to textual interpretation denies that the meaning of a text arises only in the encounter between the text and its reader. It holds that a text means only what the text’s author meant in the context in which that author wrote the text. It generally assumes that a text means what it says. If there is any vagueness or ambiguity in the text, the way to discover the text’s meaning is to determine what the author meant when she or he wrote the text. That task is not always easy. We have available to us texts that are two or three thousand or more years old. Those texts were written in contexts far different from ours.[3] Modern hermeneutics holds nonetheless that the text means what its author meant when he or she wrote the text. To this way of thinking, the text cannot mean anything else.

I have called the other hermeneutic, the other theory of interpretation, the “post-modern hermeneutic.” This hermeneutic accepts first of all that, like I have said here, the meaning of any text arises only in the encounter between the text and a reader. Postmodern hermeneutics draws several more truths from that understanding. I just mentioned how an author loses control of her text’s meaning when someone else reads it. There are others. Every text, including the US Constitution, is written in and for a specific context. Just as we cannot truly transcend our cultural context, neither can any author of any text old or new. An author always takes certain things about her context for granted. Every author, either explicitly or implicitly, understands his intended audience to share certain information and understandings. Either explicitly or implicitly, the author tailors her words to include or reflect that information and those understandings. For example, the author of the creation story at Genesis 1:1 to 2:3 had no modern cosmology, no modern, scientific understanding of the structure of the universe. Neither did the author’s intended audience, namely, the Jewish people of the late sixth or early fifth century BCE. He wrote within a context that was already very old by his time.[4] He had a certain understanding of God, and he could assume that his audience more or less shared that understanding. He challenged some of the understandings of God or the gods present in his context, but he did so within the context he shared with his audience. Even when a text challenges some aspect of the author’s culture, it does not ultimately transcend that culture.

Postmodern hermeneutics understands that as the context in which a text is read changes, the meaning of the text can change as well. I’ll use the Second Amendment of the US Constitution as an example. That Amendment reads: “A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” It was written in the young United States in the late eighteenth century. It became part of the Constitution in 1791. The United States was a very different place in 1791 than it is today. The authors of the Second Amendment understood certain things about the context in which they wrote. They understood that the nation’s armed forces consisted largely of citizen militias the members of which mustered with their own arms when called. They had some underlying understanding of just what “the right of the people to keep and bear Arms” was that was not to be infringed. They didn’t have to specify what is was, and they didn’t. The same is presumably true of the meaning of the word “infringed.” Perhaps most significantly, they and their audience shared an understanding of what “Arms” were. The word surely applied at that time to muskets, that is, muzzle-loading rifles that could fire at most four rounds per minute. Some people may have owned pistols, but like the muskets, the pistols of that day were quite primitive by our standards.

The authors of the Second Amendment can have meant only the weapons of their day. They had and could have no conception at all of the weapons of our day. Even something as simple as a Colt 45 was beyond their ken. The weapons so often used in today’s mass shootings date from the 1950s. An AR-15 style rifle can fire rounds four times faster than could an eighteenth century musket. It holds an ammunition clip containing ten rounds or more. It is far, far deadlier than anything the authors of the Second Amendment could imagine even in their wildest dreams. Also, the national defense today no longer relies on citizen militias whose members report with their own weapons. Our context today is indeed very different from the context in which the Second Amendment was written.

Modernist hermeneutics says this change in context between the time when the Second Amendment was drafted and today makes no difference in the Amendment’s meaning. To this way of thinking, the term “Arms” means today any weapon, which is what it meant in 1791, never mind the difference between and AR-15 and a musket. Post-modern hermeneutics says that contextual difference makes an immense difference in the meaning of the same words. A man with an unregulated eighteenth century musket acting alone was a serious threat in a civilian context essentially to no one, or at least to very few people. A man acting alone with an unregulated AR-15 can kill a great many people in virtually no time at all. Modern hermeneutics says the Second Amendment means the same thing today that it meant in 1791 and must be applied and enforced now as it would have been then, that is, that it applies to all arms. Post-modern hermeneutics says no, the radical change in context between then and now means that today we must interpret and apply the Second Amendment quite differently than it was or would have been interpreted and applied back then. The changes in context between 1791 and today make pretending that those changes are irrelevant to the meaning of the Amendment unjust at best and immensely destructive at worst.

The conservative majority on today’s Supreme Court operates entirely with a modernist hermeneutic. We see that hermeneutic at work in the Dobbs case that overruled Roe v. Wade, thereby taking away the constitutional right to abortion (within limits) that American women had enjoyed for nearly fifty years. In his plurality opinion Justice Samuel Alito said that Roe was wrongly decided because the US Constitution contains neither the word “abortion” nor the word “privacy,” privacy being the concept from the earlier case of Griswald v. Connecticut on which Roe was based. He concludes from that truth, I assume, that the framers of the Constitution meant to create neither a right to abortion nor the broader right of privacy. About that he is certainly correct. But he is right about the conclusion he draws from that fact only if one uses only a modernist hermeneutic. In that hermeneutic what the Constitution’s authors meant when they wrote it controls even today. To this way of thinking, the Constitution can mean nothing else.

In a postmodern hermeneutic Alito is dead wrong. That hermeneutic says that today’s radically different context demands that we apply the Constitution to our context not to the context of over two hundred years ago. Societal attitudes toward privacy have changed. Societal attitudes toward the rights and personal autonomy of women have changed. So too perhaps have the meanings of constitutional phrases like “the right of the people to be secure in their persons…against unreasonable searches and seizures” from the Fourteenth Amendment and “due process of law” and “equal protection of the laws” from the Fourth Amendment. Our context is so different from the contexts of the late eighteenth and mid-nineteenth centuries when those words were put into the Constitution that our world would be unrecognizable to the people of those times as would their world be to us. Surely we are as entitled to read the Constitution and give it meaning in our context as were the people of those times in theirs.

But, the users us the modernist hermeneutic (usually called strict constructionists) say, if you want to ament the Constitution, is contains a mechanism for doing it. Indeed, they quite correctly say, the Constitution has been amended several times through the use of that mechanism. Post-modern hermeneutics responds that its reading of the Constitution doesn’t amend the Constitution. It reads the same words in that document as the strict constructionists do. It just understands how to interpret and apply those words in ways meaningful in today’s world rather than meaningful only in the worlds of centuries ago. Moreover, the mechanism for amending the Constitution is complex and time-consuming. It has been used only twenty-seven times in the two hundred thirty-three years since the Constitution was first adopted, and ten of those amendments were done at the very beginning of the Constitution’s effectiveness. So in the last two hundred thirty-one years the Constitution has been amended only seventeen times. Three of those seventeen amendments were added to the Constitution within five years from the end of the Civil War. So in circumstances less than exigent than recovery from civil war, the Constitution has been amended only thirteen times, and one of those amendments repeals another of them. Thus since the Civil War amendments were adopted, only twelve amendments remain in effect. Yes, the Constitution can be amended, yet courts must decide cases that are before them in today’s circumstances not the circumstances of past decades or centuries. It is neither sensible nor just for the court to apply eighteenth century understandings to twenty-first century cases. It is neither practical nor necessary to amend the Constitution to fit today’s context. The postmodern hermeneutic does that in the way it interprets the document without amending it.

Yet today’s Supreme Court majority considers applying long outdated standards and concepts to today’s cases neither unreasonable nor unjust. Those six justices, more often than not, will read the words of the Constitution, think those words have only one meaning, namely the meaning they understand them to have had when first written, then apply that meaning to the case before them. In doing so they completely disregard the real life circumstances of today’s world. Does the Constitution ban unreasonable or unlawful searches and seizures? Fine. That means only searches for and seizures of material objects because, these justices would probably insist, that is what the phrase meant in 1791. It matters not at all to them that our society today has a much broader conception of individual privacy and autonomy than anyone had way back then. Thus today the court can legitimately read that phrase as creating a personal right of privacy though it does not use the word privacy. The six justices who make up the court’s majority see that the Constitution does not expressly create a right to abortion, and that’s all that matters to them. The fully foreseeable, destructive impact of revoking the constitutional protection of the right to abortion their court established nearly fifty years ago in Roe on real, living women means nothing to them. That reality in no way influences their reading of the Constitution in today’s context. The Second Amendment says the people’s right to keep and bear arms shall not be infringed. To these supposedly esteemed interpreters of the law, the difference in the killing powers of an eighteenth century musket and a twenty-first century AR-15 affects the meaning of those words not at all. So they make it even easier than it has been for mentally disturbed people to buy such a weapon and use it to murder nineteen schoolchildren and two teachers in Uvalde, Texas,  or twenty schoolchildren and seven adults at Sandy Hook elementary school in Connecticut, something no one could have done with a muzzle-loading musket.

The significance of the destructive effect in today’s world of the court being concerned only with what words are and are not in the Constitution is immense. The destructive effect of the court assuming that context is irrelevant to the meaning of the Constitution in today’s world is obvious to anyone who will deign to look for them when interpreting the law. Yet, operating entirely within the limitations of the modernist hermeneutic, today’s Supreme Court is imposing a reactionary revolution on today’s people. They are charging headlong into understandings of the law one or even two centuries old, and they are taking the rest of us kicking and screaming with them. They are reactionary ideologues who find “strict construction” of the Constitution an effective means of undoing most of the progress toward justice our country has made in the course of its long and tortured history. They are making our country less than it used to be.

The gap between what this country has claimed to be and what it actually is has always been wide. The majority of today’s Supreme Court is making that gap into an immense chasm. It will take us decades to undo the damage they have already done and the additional damage they will surely inflict on us in the future. Today’s Democratic president and congressional majorities could in theory pull the court majority’s fangs by expanding the Supreme Court so that today’s majority would become a minority. Sadly, President Biden as already rejected that solution of the problem of today’s court. No other solution seems possible.

So I say God damn the Supreme Court! God damn Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett. God damn them for the immense harm they are causing and will continue to cause to our nation and to the world. Yes, God can and will forgive them. I cannot. I will not. Those six justices make this the worst Supreme Court we’ve had at least since the court that sanctioned Jim Crow segregation in 1896. They are hellbent on destroying our country in the name of a reactionary ideology that cares not one good God damn about real people and the effects their decisions have on those people. So yes. God won’t do it, but I say God damn them to make my point. Of course I can’t damn them. But trust me. If I could, I would.

 

---

[1] Hermeneutics is an awkward word. It is plural in form, but it also has the singular form of hermeneutic. I will use both versions of the word here and will treat them both as singular unless the context clearly requires a plural noun.

[2] For a more complete discussion of hermeneutics see my Liberating the Bible, Revised Edition, Vol. 1 Approaching the Bible, Stop 3, “The Art of Biblical Interpretation, Part One, Hermeneutics.” What I say there about interpreting the Bible applies equally well to the US Constitution.

[3] Yes. I know that there are a great many different contexts in our country today. None of them, however, is anything like the context in which any two thousand year old text was written.

[4] The author of this story was certainly a man not a woman. In his context, men wrote religious texts, women didn’t. Hence, I refer to this author only as “he.”