By Daniel Bruce '22
Trigger Warning: Sexual Assault, Torture
The recent actions of the Supreme Court of the United States have managed to get US media groups to fear that the court may in fact be partisan in nature. This is a historic achievement, given how impenetrable the media’s self-imposed veil on Supreme Court hypocrisy and clumsy political maneuvering has proven to be in the past. Even the Harvard Law School hack Noah Feldman, who rushed to assure everyone that the Supreme Court would not overturn Roe v. Wade in September, has seen the writing on the wall, admitting in past weeks that there is little doubt about what is coming next. I doubt that pointing out the Supreme Court is a highly political institution is a shock to anyone reading this, but what remains more nebulous for many is the profoundly unsalvageable nature of that court as an institution.
The first thing to note is that the Supreme Court is built upon a fundamentally flawed foundation and is therefore beset with problems even beyond its being steered by a radical conservative majority. Most damningly, the Supreme Court is built around legal traditions which prioritize history over rights and prevent proactive Constitutional protections from being awarded. These structural failings alongside the tireless machinations of the conservative legal project have made not only the Supreme Court, but the entire legal apparatus, a weapon for promulgating authoritarianism and reinforcing our societies deepest inequities.
To give some concept of the moral character of the Supreme Court as an institution, the relatively recent case of Ashcroft v. Iqbal (2009) highlights the varied range of victims, harms, and democratic processes the court continues to show disdain for. In discussing this case, I cannot in good conscience exclude the context of the horrors that Javaid Iqbal was forced to endure, but even a summary of his experiences is immensely disturbing, so I advise readers to continue through the next paragraph cautiously.
Javaid Iqbal was an undocumented immigrant who lived and worked in New York City for many years. Because of his undocumented status, Mr. Iqbal obtained and used a fraudulent social security card in order to obtain a driver’s license and find work. Following the September 11th attacks, Mr. Iqbal was arrested by two FBI agents under charges of identity fraud but was soon after labelled a person of high interest suspected of involvement in the 9/11 attacks. To this day, the only justifications that have been provided for his addition to this list has been the allegation by a couple officers that they discovered evidence of an appointment in downtown on September 11th. Mr. Iqbal is originally from Pakistan and was also a Muslim. Nearly all of the roughly 100 individuals placed on the high interest suspect list which Mr. Iqbal was added to were also Muslim. As a result of being placed on this list, Mr. Iqbal was moved to a high security detention center, where he was regularly subjected to beatings, as many as four “strip and body cavity searches” on any given day, isolation for 23 hours out of every day with the remaining one hour spent in chains binding both his hands and feet, being left out in the rain and then put back into isolation with the air conditioning left on, having guards urinate in his cell, denied medical treatment, and given inadequate amounts of food. Upon his eventual release, with no evidence or charges beyond the initial identity fraud being presented by the government, Mr. Iqbal returned to Pakistan. Branded an American agent, his American born son was forcibly disappeared not long afterwards. Mr. Iqbal, after returning to Pakistan, filed suit against John Ashcroft and Robert Mueller, alleging violations of his first and fifth amendment rights for their overseeing and implementing racist and religiously discriminatory policies against him.
The case that arrived at the Supreme Court was only in a preliminary stage. No discovery had occurred, as the appeals process had been first centered on whether or not Mr. Iqbal had standing to sue Ashcroft and Mueller, who had filed a motion to dismiss the case. Both the district court and the circuit court had ruled that Iqbal had standing to sue and rejected the motion to dismiss. The Supreme Court reversed these rulings, finding that Iqbal had not established a “plausible” complaint upon which to found a legal suit and also ruling that Ashcroft and Mueller would be immune from liability for their subordinates’ actions under respondeat superior, essentially meaning that government officials could only be sued when they themselves undertook individual actions which violated the Constitution. Aside from the atrocious injustice of the outcome, the majority in the case showed fundamental disdain for legal and democratic processes in making their decision. The idea that a plaintiff needs to establish a “plausible” complaint before the case has proceeded to any level of discovery flew in the face of civil procedure as it was understood prior. In fact, the majority opinion even noted the prior standard that “a complaint must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief’ [and] ‘Detailed factual allegations’ are not required” (Ashcroft v. Iqbal, 2009). This had always been understood to mean that a plaintiff had only to provide a complaint alleging a crime/violation of the law and which provided enough specificity that the defendant could understand the accusation and respond. It was also well understood that in determining whether there was standing for a suit, the court was required to momentarily assume that the complaint was entirely accurate. Furthermore, a process existed for changing these civil procedures and involved lengthy considerations with time for public commentary and feedback, all of which was subverted by the court’s holding in this case. The heightened standard has made it virtually impossible to sue government officials responsible for constructing and implementing unconstitutional policies and had the additional effect of further skewing the legal system in favor of corporations.
The history of the Supreme Court, of United States legal traditions, and the decades long conspiracy to capture the legal mechanisms of this country by the conservative legal movement, are now culminating in what may well turn out to be the most brazenly unconstitutional Supreme Court term in recent memory. In its decisions regarding the Texas Senate Bill 8 (S.B.8), the court has given a stamp of approval to the privatization of state government enforcement mechanisms and clarified that the use of such privatization provides states a vehicle for avoiding adherence to the Constitution or federal law. As was aptly pointed out in Justice Sotomayor’s dissent in Whole Woman’s Health v. Jackson (December 10, 2021), the majority’s holding in the case “echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto or nullify’ any federal law with which they disagreed.” Some are still arguing that the court made a merely procedural decision and has not ruled on the merits, but for those paying attention to the specifics of the most recent decision, the Supreme Court has denied any suits against parties or individuals which would allow for the halting of private suits. Instead, the court has allowed only a suit against certain members of the medical licensing board because of their enforcement role separate from the private lawsuit portions of S.B.8.
These two cases constitute only a small fraction of the corruption at the heart of the Supreme Court and the law, and they fail to even broach the longstanding history of oppression and discrimination which U.S. law has been complicit in since the country’s founding. They should hopefully, however, serve as sufficient evidence that drastic, revolutionary measures are required not only to achieve a more just country but to prevent the dissolution of democracy in the United States. I do not adhere to the idea that we are in supremely worse times now than we were in the past; most of corruption in politics today is simply becoming more visible as opposed to being new. However, there is serious and imminent danger in that increasing visibility, as those who have historically wielded power oligarchically are forced to abandon pretense to maintain control.
At the most rudimentary level, the Supreme Court needs to be challenged on its hypocrisy and absurdity. The creation of laws and legal suits, like the gun-restriction bill being worked on in California, will help to expose the Supreme Court’s malicious and ingenuous nature. I don’t doubt that the Supreme Court will find ways to argue against laws identical in structure to S.B.8, but by forcing them to make their stance, we can begin to remove the shrouds of secrecy that the court has used to maintain impunity. Many members of the legal community, including Justice Stephen Breyer, have decried such tactics, arguing that the Supreme Court’s legitimacy must be maintained. This argument is rooted in the longstanding notion that the legal system and its perceived legitimacy stand between us, the people, and anarchic violence. In the legal mythos, the provision of a non-violent system of arbitration is what undergirds our democracy. I believe in the rule of law and in the possibility of realizing a legal system more in line with this myth, but our current legal system does not, and has not ever, truly protected the citizens and residents of this country from violence. For over 200 years, our legal system has enacted violence through slavery, religious persecution, protection of lynch mobs against countless marginalized groups, defense of segregation, theft of wealth and land from the impoverished, the destruction of Native American sovereignty and legal status, and it is clear that this violence continues today.
Beyond these initial attempts at challenging the court, an entirely new legal framework and set of philosophies needs to be developed. It is relatively plain to see how textualism and originalism are merely tools for disguising partisan decision making, but the legal philosophies of liberal justices leave much to be desired themselves. In the worst cases, justices like Justice Breyer can offer little more than the idea that precedent must be allowed to stand in the watershed case of Roe v. Wade, stating that the decisions of Roe and Casey themselves were made “for better or for worse,” and that they have “caused some bad things, in the eyes of some people, and some good things, in the eyes of some people.” This wishy-washy adherence to precedents becomes clearly concerning when the vast number of atrociously decided cases in the Supreme Court’s history are considered. Should it really have taken over a decade of work by the NAACP creating small victories before the Warren Court felt comfortable overturning Plessy v. Ferguson? When these kinds of questions are brought up, it is common to hear the argument that without these kinds of gradual shifts or the maintenance of even bad decisions, the public would not accept Supreme Court decisions. This argument is absurd on several fronts. Where the Supreme Court has made controversial decisions and/or overruled precedent, its adherence to gradualism has rarely seemed to make much difference. Brown v. Board of Education was opposed vehemently throughout the country, and the Supreme Court decided to largely back down in the second Brown v. Board of Education ruling some years later. Opposition to the decision has continued to this day, so that even if the decision is touted as unassailable in conventional discourse currently, most schools and residential areas remain heavily segregated. The question must be asked to what extent many supporters of Brown v. Board of Education would still espouse support were de facto segregation less prevalent. Similarly, no appeals to stare decisis have convinced those who are anti-abortion to second guess their arguments and activism towards overturning Roe and Casey. At the end of the day, the Supreme Court cannot maintain “legitimacy” simply by telling us all to ignore when they make starkly partisan and erroneous decisions.
What should the law look like then? Can a democracy create a meaningful “rule of law” without the consistency of decision making supposedly provided by “stare decisis?” Can a court concern itself with “outcomes” and still be considered objective? If the law is to become a consistently meaningful force for good, the answer has to be yes. And I think there are ample reasons why that needn’t be an impossible reality to strive for. There is no reason why a less rigid conception of precedent and stare decisis could not be adopted, one more akin to presidential treaty obligations, for example, where the emphasis is not on some sacred value to cases from a 100 years ago but on recent decisions not suddenly reversing from the addition of a new justice. Nor is it hard to imagine a court willing to assign federal agencies orders to intervene or make themselves available to harmed parties where financial restitution might be an inadequate resolution. Pre-enforcement mechanisms need to meaningfully exist, free of the perverse limitations that have been placed on individuals seeking to vindicate their constitutional rights.