Back in the day, some greasy spoon restaurants hung up signs saying: “In God we trust; the rest pay cash.” Increasingly today we don’t seem to trust anyone, not even the Almighty, and we’re paying a high price for it. Without trust, nothing really works in a society. Not government, not the economy, not the family.

But where do we go to get it back?

I’m tempted to wisecrack that we could try going to court. But alas, a major symptom of the collapse of trust in American society is that people no longer regard its Supreme Court as trustworthy, disinterested, fair-minded and, well, honourable. Instead, if the Court rules my way, the justices are paragons of wisdom and decency, and if not, they’re venal hacks or biased zealots.

Trust is like respect. Very much like it. Particularly because it’s not given; it’s earned. Yet increasingly, people demand it rather than doing the hard work, which is typical of the modern self-centred mentality. But what if self-centred people are inherently unreliable?

SCOTUS has credibility issues

A major problem with the credibility of the American Supreme Court is precisely the tendency of its own members to lash out at one another in their dissents rather than delivering a Solonic assessment of perceived weaknesses in a ruling. And the rulings themselves increasingly seem intended to provoke not persuade.

In other ways, too, the Court has been letting us down of late. And not just the justices with whose jurisprudence I have significant issues. Clarence Thomas, for example, seems to have been accepting perks he should neither take nor even really be tempted to since he and his colleagues are paid handsomely, and seem to make out on the side as well.

Canada’s own Supreme Court Chief Justice took it upon himself, during the divisive truckers’ convoy of 2022 that led to the divisive invocation of the Emergencies Act, to give an interview to a French-language Quebec newspaper.

In that interview he called that peaceful protest “the beginning of anarchy where some people have decided to take other citizens hostage” and decreed that “forced blows against the state, justice and democratic institutions like the one delivered by protesters … should be denounced with force by all figures of power in the country”.

This was a catastrophic own-goal against the notion that the Supreme Court was impartial, if anyone still thought so. That a Chief Justice failed to see his remarks as in any way inappropriate only shows how far we have sunk.

To be sure, the US Supreme Court has not suddenly descended from a pedestal on which it sat calm and revered from 1789 through 2020, 2016 or 2000. It has been the subject of ferocious controversy and pilloried as a participant in key public quarrels rather than a referee since at least the appalling Dred Scott ruling of 1857. This decision really was and always will be its worst moment.

(In case you’re not a student of American history, the court under Democrat Roger Taney lurched disastrously into the rapidly detonating issue of slavery, ruling that no state or territory could restrict it.)

The less controversial 1896 Plessy v Ferguson ruling was also a howler. And Brown v Topeka in 1954, which rightly reversed Plessy but on the wrong grounds, sociological rather than judicial, certainly attracted opprobrium. Roe v Wade was also a landmark in discrediting the Court as well as in gender jurisprudence, plainly stretching the Constitution and precedent in totally unjustified ways to achieve a particular policy outcome.

Who appointed Justice Jacques Derrida?

And then there’s Planned Parenthood v. Casey in 1992, whose upholding of Roe incorporated the astounding claim that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” These words, remarked Charles Colson, were “written by Justice Anthony Kennedy, but which might as well have been written by Jacques Derrida”.

It was a ridiculous ruling. By the same logic, as philosopher J. Budziszewski commented in his book Natural Law for Lawyers,: “A teen with a gun idly fires a shot into your bedroom window – because for him you don’t exist. A sadist tortures your wife to death – because for him the meaning of her pain and fear is pleasure. A business rival wires your car to explode – because for him the universe is dog eat dog. An admirer of Adolph Hitler burns down the houses of your Jewish friends – because for him Jews aren’t human life. There is no way in law or logic to distinguish the Court’s argument for abortion from the other four arguments.”

It also prompted a scathing dissent from Antonin Scalia that showed dismay verging on contempt for his colleagues’ legal reasoning. Indeed, he invoked Roger Taney and Dred Scott and mocked the Court’s belief that it was settling a controversy by taking a tortured position on behalf of one side. Brevity was important, he wrote, but “I must, however, respond to a few of the more outrageous arguments in today’s opinion, which it is beyond human nature to leave unanswered.”

Scalia’s response included such phrases as “The emptiness of the ‘reasoned judgment’ that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.”

Casey is especially interesting in our context precisely because the “plurality” decision, by three judges, demanded respect instead of earning it. It intoned:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

Given that the remaining six justices produced no fewer than six opinions, concurring in part and dissenting in part on a bewildering variety of grounds supported by between one and four Justices, no common mandate was in sight even before the ruling left the building. Indeed, then-Chief Justice William Rehnquist, in his concurring dissent, pounced on this “common mandate” passage to observe acidly:

“This is a truly novel principle, one which is contrary to both the Court’s historical practice and to the Court’s traditional willingness to tolerate criticism of its opinions. Under this principle, when the Court has ruled on a divisive issue, it is apparently prevented from overruling that decision for the sole reason that it was incorrect, unless opposition to the original decision has died away.”

One of the staggering problems with Casey is precisely that the Court said it didn’t matter whether Roe was good jurisprudence or not; people had gotten used to it and arranged their lives around it, so it had to stand. Not even Roger Taney went that far on slavery.

As Scalia further observed, “The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve.” Indeed.