In Federalist 78, Alexander Hamilton famously called the judiciary the “least dangerous” branch of government. He wrote: “The judiciary, on the contrary, has no influence over either the sword or the purse… It may truly be said to have neither FORCE nor WILL, but merely judgment.”
The next time Hamilton would be as wrong about something, he’d be firing a gun into the sky as Aaron Burr shot him to death.
Now, in fairness to Hamilton, he did not anticipate the Supreme Court more or less inventing the right to judicial review in Marbury v. Madison, thus taking for itself something akin to a right to constitutional prima nocta. Ever since then, the unelected, unaccountable Court has claimed to be able to invalidate laws or orders promulgated by our elected representatives—a power most other high courts in functional republics do not have—and both the legislative and executive branches just kind of go along with it. As a result, we live in a country where five elderly randos whom nobody voted for can thwart the will of strong majorities of a nation of more than 300 million people. Not since the movie Cocoon has the septuagenarian set been quite so bold.
The currency the Court uses to pull off this self-aggrandizing sleight of hand is legitimacy. The Court has no formal constitutional authority to strike down laws, nor money nor manpower nor guns to enforce its proclamations. But it enjoys its power anyway because the rest of the government—the people who do have soldiers and tax breaks to deploy—agree that the Court is a legitimate check on their own “force” and “will.”
Throughout history, the Court has carefully guarded its legitimacy using a variety of tools. It moves slowly. It hews towards formalistic standards of briefing, argument, and deliberation. Its opinions are couched in heavy jargon, as inscrutable to the common eye as a wizard’s spell. And it rarely gets out too far ahead of the popular will or the men with guns. Even its most so-called “controversial” opinions regarding human rights—which are controversial only if you don’t accept that minorities, women, and the LGBTQ community deserve the same fundamental rights as cishet white bros—often come years (or decades) after overall public sentiment has moved towards greater equality and inclusion.
At least, that’s how the Court tried to operate until the Roberts Court. This version, chock full of jurists hand-picked by the Federalist Society and emboldened by Mitch McConnell’s manipulation of the judicial nomination process, has gleefully eschewed the traditional ways the Court used to build up its legitimacy. In its place is the jurisprudential equivalent of the Fyre Festival’s immortal tagline: “Let’s just do it and be legends.”
The Court’s heavy reliance on its shadow docket typifies this new era of not giving a shit about what anyone thinks. The shadow docket is a term for the Court’s emergency appeal process. From a purely technical perspective, there’s nothing wrong with its existence. Although it usually takes years for a case or controversy to make its way to the Supreme Court, sometimes a government agency, individual state, or lower court does something obviously or irrevocably foolish. Sometimes, as in death penalty cases, the state is about to do something so harmful and final that checking the state years later would be useless. In these situations, it’s useful and appropriate for the Court to step in, restore the law to the status quo, and then wait for litigation to play out. We need an emergency process because for many litigants, the normal process is dangerously, disastrously slow.
The current Court, however, uses its shadow docket for something else: to advance the Republican political agenda or quash the Democratic political agenda, as the case may be. Over the past five years, we’ve seen the Court use the shadow docket to allow Republicans to fight their favorite culture wars, from banning abortions in Texas to banning Muslims from the country. Meanwhile, the conservatives have also used it to stop Democrats from responding to actual emergencies, like introducing public health measures to keep people from getting COVID-19 or dealing with the homelessness crisis wrought by the pandemic. The shadow docket is not where conservatives justices go to uphold the rule of law—it’s where they go to uphold Republican policy. It is no longer for “emergencies,” unless you think that whatever Republican presidents or governors want that day constitutes an “emergency” that requires immediate attention.
The notion that the Court can throw out 50 years of precedent regarding a woman’s right to choose in a 5-4, one-paragraph, unsigned order, as it did earlier this month in Whole Woman’s Health v. Jackson, is facially absurd and provocatively stupid. But the Court no longer cherishes its perceived legitimacy. Instead, at least five of the six conservatives have fully embraced their freedom to deliver victory to their partisan benefactors while ignoring the will of the people as expressed through their elected representatives. As Adam Serwer wrote in The Atlantic, the Court’s conservatives minus Chief Justice John Roberts took away women’s rights simply because they could. Roberts, meanwhile, wants all the culture war victories his conservative colleagues want—he just cares more about maintaining the façade of legitimacy than his colleagues who are happy to break things and feel no compulsion to apologize for it.
That’s the real battle on the current Supreme Court. Not between liberals and conservatives, because liberals have already lost. Not between Democrats and Republicans, because the Republican agenda has already won. The battle is between Roberts and the rest of his conservative colleagues over whether the Court will revoke the full measure of equality towards minorities, women, and the LGBTQ community through the traditional process employed by white courts since the Dred Scott decision, or whether they will revoke those rights in the Court’s version of the express checkout lane just because they have the power to do so. That battle is between leopards who want to hunt their prey in silence, and boisterous, cackling hyenas who want to steal it. Either way, anything authorized by the Biden White House or a Democratically-controlled Congress is dead meat in front of this Court.
A judiciary full of unelected, unaccountable conservatives is the most dangerous threat to a government of, by, and for the people. Now, Democrats have to decide whether to continue deferring to an institution that has plainly forfeited whatever legitimacy it imagines itself to have. The stakes are high, but the choices are simple: Lawmakers can increase the number of justices on the Court to rein in its abuse of both the shadow docket and the “normal” process by which the conservatives take away rights. Or they can lose. The Biden administration can refuse to enforce egregious Court rulings issued in the face of overwhelming constitutional precedent. Or they can lose. Elected officials who care about things like “rights” and “equality” can correctly identify the robed assailants who would take those rights away. Or they can lose.
Democrats can speak frankly about the existential threat this Court poses to the future of representative democracy, or continue to fumble in the shadows as conservatives snuff out the embers of a free and fair society for good.