Entertaining the ‘absurd’ is key to destroying judicial credibility

by | Oct 13, 2022 | Politics/Government

photo from freerangestock.com

The Judicial Branch of government is certainly on a roll. It started with “The Leak” in May of what turned out to be the official landmark ruling in July of Dobbs v. Mississippi. You know the one. It is the one that turned back the clock on women’s healthcare rights by nearly half a century. The justices voting in favor of Dobbs, had all tap-danced through their Senate confirmations to the court with statements of their commitment to “settled law” in this arena. Those lies were still hanging in the air as they defiantly reversed themselves—as expected.

That expectation matters more than some might immediately think. For the bulk of American history, the credibility of the U.S. Supreme Court has been high enough for the nation’s citizenry to go along with whatever it decides. This lopsided court is testing us, and it isn’t only about abortion.

The court began hearing cases this session on October 3, and they are hearing some doozies. And don’t forget, SCOTUS gets to choose what it hears. 

One of those doozies is Moore v. Harper, a North Carolina case that has put the question of the “independent state legislature theory” to the court. The theory relies on language from Article One of the U.S. Constitution that states: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” The plaintiff is North Carolina Speaker of the House, Thomas Moore. His claim is that, according to the constitution, state legislatures alone decide what the congressional maps shall be. And this independence includes freedom from any other branch of state government.

It’s an absurd suggestion. The legislature and all of its authority is derived from each state’s constitution, and it must act within that defining document. If this theory prevails, all state legislatures will be able to draw congressional maps with no checks and balances at all. It is safe to assume, given Indiana’s Republican supermajorities, that the two house districts held by democrats will immediately be redrawn. Specifically, Reps. Andre Carson and Frank Mrvan will not be reelected again.

It is also safe to assume the same will happen in blue states like Illinois and California. But what happens in states that are currently more purple, like Wisconsin, Pennsylvania and Georgia? 

It is an absurd suggestion that not only could, but certainly will, lead to absurd results. By merely accepting the case, the court is announcing that it doesn’t think it is absurd at all, and that the possibility of approving the wacky theory is real.  

The Conference of Chief Justices, made up of all fifty of the state supreme court leaders, has filed an amicus brief, or “friend of the court” pleading. In the conclusion of its brief, the conference writes that “the Elections Clause does not oust state courts from their traditional role in reviewing election laws under state constitutions.” Though the conference didn’t ask this, I will. If our state supreme court is “ousted,” what other absurd results could follow?

Indiana Chief Justice Loretta Rush (photo provided by Indiana Supreme Court)

On July 27, Indiana Chief Justice Loretta Rush was named as the President of the Board of Directors of the conference. Given the U.S. Supreme Court’s current mindset and controversial tendencies, I expect her tenure to be filled with drama, quite possibly like no other term since the group was founded in 1971. 

Oh, sure, there has been drama before now. 

President Dwight D. Eisenhower sent guns and troops to integrate the schools in Little Rock in 1957. That was followed by Alabama Governor George Wallace’s 1963 stunt, where he blocked the admission of Vivian Malone and James Hood to the University of Alabama. President John F. Kennedy deputized the Alabama National Guard to clear the way, and Wallace eventually stepped aside.

These were examples of the executive branch of government enforcing Brown v. Board of Education, the landmark decision from 1954. More than nine years afterward, JFK still needed troops to enforce it. 

In the era of election denialism, what could happen if some unit of American government decides not to comply with a ruling of a court it sees as illegitimate? Gallup began tracking the “trust and confidence” Americans have in the Judicial Branch in 1972. For most of the last fifty years, those with either a “great deal” or “fair amount” of trust in the court have been between 63 and 80%. In 2022, that number has plunged all the way down to 47%. 

The court has an important role in maintaining American confidence in the rule of law. It should start by keeping absurdities off its docket. 


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