Should SCOTUS be tried for being untrustworthy?

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.



Join Mercator today for free and get our latest news and analysis

Buck internet censorship and get the news you may not get anywhere else, delivered right to your inbox. It's free and your info is safe with us, we will never share or sell your personal data.

Roe was recently overturned, albeit without establishing a consensus. But it has allowed a variety of measures to be taken in individual states and litigated ferociously, which does resemble the process of self-government better than Roe itself ever did.

Unhappily, the Casey mentality persists in American jurisprudence. Too often, important cases are decided on the “vibe” of the statutes or on a perceived need of settling a social problem. The prospect is disastrous. No matter how “multiculturalist” you might claim to be, it seems highly unlikely that you would regard “untrustworthy” as a compliment. Or find any society anywhere that did. If you’re distracted while engaged in the important task of transvaluing all values and I pinch your wallet, my guess is you’ll exhibit some old-time values pronto.

But academia, journalism and politics mostly insist that all values are relative, that you have your truth and I have mine, that there’s no such thing as absolute truth or objective right and wrong. They often act in accordance with such contentions. And then they wonder why they keep getting such funny looks

Donald Trump is a reflection of this problem. He has legions of followers so loyal that to disrespect him seems to be the kiss of death for GOP presidential contenders. And yet the man has never been trustworthy in business, in family life, or in his personal image.

As president, he was laughably, well, dishonest isn’t quite the word because he wasn’t aware of the truth and deliberately lying; he simply had no interest in it. Moreover, once his followers plunge down that rabbit hole, it’s hard to coax them out, because they too don’t care whether things are true or not, just whether they seem to benefit their tribe. And caring about what’s true and false appears not to.

Returning to the basics

In the long run the truth makes you free and lies enslave you. But in the short run, particularly in politics, there’s little evidence that truth is or ever was the best policy. And here, as I’ve said before, Trump is a symptom not the problem.

Lying constantly certainly worked for Bill Clinton. It was winked at by his party and it eroded trust across the aisle and across the nation. Indeed, a party that hailed Ted Kennedy as a champion of women’s rights looked silly when surprised that its cries of indecency against foes went unheeded, or even incited them to go further. And moral relativism, deconstructionism and so forth were left-wing enthusiasms for decades, resisted unsuccessfully by the right who were scorned as hicks for trying.

So now that the chickens are home to roost, what do we do?

A study a few years back, looking at its history before 1500, found that Christianity had a strong tendency to foster social trust in a curious way. It’s by no means the only one or the most important one. But it’s highly revealing. By strongly discouraging cousin marriage, it made societies less clannish and required people and families to develop better links with those to whom they were not related. In short, to build trust the old-fashioned way: by being trustworthy.

If we want it back, and we should, we’re going to have to return to those basics.


John Robson is the Executive Director of the Climate Discussion Nexus, a documentary film-maker, a columnist with the National Post, the Epoch Times and Loonie Politics, and a professor at Augustine College. He holds a PhD in American history from the University of Texas at Austin.

Image credit: David Dibert on Pexels 

Showing 2 reactions

Please check your e-mail for a link to activate your account.
  • mrscracker
    “Donald Trump is a reflection of this problem. He has legions of followers so loyal that to disrespect him seems to be the kiss of death for GOP presidential contenders. And yet the man has never been trustworthy in business, in family life, or in his personal image.”
    I voted twice for Mr. Trump, the first time with quite low expectations. I’m not a member of the legion you describe above but Donald Trump was certainly trustworthy in what he promised re. the nomination of Supreme Court Justices. Without his election we’d still have Roe today. And thousands more lives lost. That counts for a great deal to be grateful for I think.
  • John Robson
    published this page in The Latest 2023-08-22 11:08:06 +1000