The Court's Third Great Crisis.

• Author: Epps, Garrett

TWICE BEFORE IN HISTORY, THE SUPREME COURT HAS ALLOWED ITSELF TO BECOME AN ARM OF ONE POLITICAL PARTY, WITH CATASTROPHIC RESULTS. ONLY THE VOTERS CAN SAVE US FROM THE SAME FATE TODAY.

This February, the U.S. Supreme Court will celebrate its 233rd birthday. Twice before over that quarter millennium, the Court has precipitated national crisis by attempting to move into the center of power and govern the country from the bench. The first crisis arose during the 1850s, when a Court dominated by slaveowners decided to end the slavery controversy by awarding total and permanent victory to the South. The second took place during the 1930s, when a majority of the "nine old men," in the face of national upheaval, set out to block any attempt at progressive government, labor rights, or economic justice.

The Court has now triggered a third crisis, as its newly installed majority moves to upend both established constitution al precedent and vital democratic norms. What the result will be is impossible to predict. Just as in the 1850s and the 1930s, the Court's aggressive actions have sparked a dangerous situation that threatens generations of progress toward genuine democracy. As a nation, we like to believe that we are an exception to the somber lessons of history, that somewhere above us hover the "better angels of our nature" who can be counted on to ensure that the Republic will not only survive but prosper.

But this is a fantasy. We will never escape the current danger unless we face the facts.

In the first two crises, the Supreme Court's motive was the same: to return America to the grandeur of an imagined past. For the Dred Scott Court, that was a golden age when the dominance of the white man was eternal, absolute, and beyond question; for the pre-1937 Court, paradise lost was the brutal grandeur of the Gilded Age, when the U.S. Constitution was read as absolute protection of massed wealth and privilege, and barred any concession to human equality.

In our time, the Court's aggressive stance flows from a deep well of conservative resentment at the social changes of the past 50 years--at the very idea of a multicultural republic, of changes in the status of women and the liberty of sexuality, and of any challenge to the cultural dominance of a peculiarly white American strain of conservative Christianity.

Whatever former President Donald Trump's own future may be, he lives on in a Supreme Court determined to Make America Great Again.

The Supreme Court in 2022 is an entirely different institution from the Court of 2016. Most obvious is the turnover of personnel. Four new justices have joined the high bench since then--as many as turned over in the previous 16 years. But the Court has also drastically changed its jurisdiction and procedures, most importantly with the rise of the emergency, or "shadow," docket--a toolbox of temporary emergency orders and procedures that allows the justices to intervene in lower-court cases at any point it chooses, awarding "provisional" victory to favored litigants. The Court has used the shadow docket to intervene without allowing trials in the district courts, oral argument in any appellate court, full briefing by the parties, participation by the public through "friend of the court" briefs, or sometimes, in the end, any explanation--only a one-line order that often does not even make clear which justices voted which way. The shadow docket has become a kind of appellate star chamber, resolutely closed to the public or the parties, and aggressively wielded in aid of the Court's reactionary project.

Most important, of course, is a new jurisprudence, unveiled in the raft of radical decisions at the end of the 2021-22 term. The results were startling enough--an end to constitutional abortion rights, a sweeping expansion of Second Amendment gun rights, and a stunning cutback in the government's power to address the climate crisis. Equally startling was the Court's new method of reaching results. Precedent no longer matters, the justices have said, if five members of the current Court consider a line of cases "egregiously wrong." That category, the new majority hints, sweeps into one wastebasket the major civil society landmarks of the past half century--cases that have enhanced racial and sexual equality and LGBTQ rights.

For this Court, and for constitutional law in the 21st century, 2022 is Year Zero. Nothing is settled law; nothing is certain.

What happened? The change in the Court is the result of a sustained, highly organized, entirely conscious campaign to annex the federal judiciary to the political party system. It is not just a matter of a change in judicial personnel--in the wedging, through banana republic tactics, of three hard-right justices onto the Court. That change has taken place amid a profound and irreversible shift in the very idea of law, and in the meaning of judicial independence. Though we can look back at the historical record and see where both sides have broken the norms that undergirded the old system, the recent assault did not come from "both sides." It was initiated, organized, and conducted by the GOP, the conservative legal movement and its billionaire backers, and the politicized wing of white evangelical Protestantism.

Democrats and progressives have responded, spasmodically, clumsily, and to little effect, but they too have made statements and taken actions that violate traditional ideas of respect for judicial independence. One could argue that this response is not only appropriate but necessary--because a norm that binds only one side of a dispute is not a norm; it is a trap. The Court's majority has thrown in its lot with the right wing of the GOP, and we must deal with it as the partisan institution it now is.

The story begins in February 2016, when Justice Antonin Scalia died suddenly. Though in actuarial terms a vacancy on the Court had been looming for some time, the news of Scalia's death seemed to catch Washington's grandees by surprise--with one exception. Within two hours of the announcement, Senate Majority Leader Mitch McConnell had stated that President Barack Obama should not be permitted to fill the vacancy, and in the remaining few months of Obama's term, McConnell was able to block both hearings and a vote on Obama's nominee, then Judge Merrick Garland.

There's more to that story than meets the eye. Though McConnell pretended to base his intransigence on democratic principles--the next president should pick the next justice, he asserted, since the end of Obama's term was relatively near--neither he nor his conservative backers even tried to make that claim persuasive. The real objection to Garland, openly expressed, was the looming failure of three decades of effort at a conservative takeover of the Court. Republican Senator John McCain supported the blockade of Garland, but warned that if Hillary Clinton was elected in the fall, he would oppose any nominee she offered during her four-year term. "The Senate is fully within its powers to let the Supreme Court die out," Cato Institute counsel Ilya Shapiro wrote in The Federalist.

On March 6, even after McConnell's pledge to block a nominee, Republican Senator Orrin Hatch had publicly suggested that, if Obama nominated Garland, Hatch would support him. Hatch, a former Senate Judiciary Committee chair, was respected on both sides of the Senate aisle and had spent more than 35 years in the judicial confirmation business. As early as 2010, Hatch had been pushing Obama to nominate Garland instead of a more liberal nominee. Garland had been seen for some time as a conciliatory centrist nominee who in a normal time would attract significant Republican support. Obama went ahead with the nomination 10 days later. Hatch refused to support it.

Blocking the Garland nomination set off a fairly complex political earthquake. In May 2016, Donald Trump announced that, if elected, he would pick Scalia's replacement from a list of 11 sitting federal judges--all of them white, all but three of them male, and every one of them chosen with the approval of the conservative Federalist Society and Heritage Foundation. Until that moment, the economic, political, and religious groups for whom the Supreme Court was a dominant political issue had hung back from candidate Trump. Though Trump was now taking a hard conservative line on the courts, he was a former Democrat, and one who had once proclaimed himself prochoice. Considering Trump's erratic personality, and his random musings about the courts, these groups reasonably feared that his nominees might be random or whimsical, rather than ideological--TV personalities like Jeanine Pirro, for example, or cronies like former New York City Mayor Rudy Giuliani, or even his own sister, Judge Maryanne Trump Barry, whom the right loathed for her willingness to enforce abortion rights precedent. But now Trump made them a solemn promise that he would name only the judges they approved.

This may be the only promise Donald Trump ever kept.

That list changed the entire campaign. In a larger sense, many observers believe it is the reason why Trump got the party's nomination in July and came out of the convention with a unified party behind him, then eked out an electoral win despite losing the popular vote in November. It was important in another way: It marked the first time in history that a presidential candidate produced a list of specific names from which he would pick his Supreme Court nominees. It put the Court--not its overall direction, but the specific names of potential members--on the ballot for the first time. In 2018 and 2020, as well, specific judicial nominees--Brett Kavanaugh and Amy Coney Barrett--became part of the electoral mix. Trump's list also signaled to certain sitting federal judges that they were under consideration for the Court--a signal that might very well affect their conduct in high-profile litigation in the meantime. By 2020...