For years the Supreme Court has been an institution with an immunity to America’s contemporary social affliction. Political pathology hasn’t held the driver’s seat. In fact, those who throw the loudest political stones at the Court are, themselves, partisans of one side or another decrying only that their favored social imaginations for the Constitution are not being validated.

Even as polarization took hold in American political culture, the Court held strong. Unanimity rates increased as the rest of the branches and the media became narrative-oriented (proselytizing). Judicial minimalism flourished. Cross-party justice agreement rates were especially high among several of the justices. Swing voting was not only common, but politically powerful. Almost every major case you can think of has involved a collection of both Democrat and Republican justices. In the area of abortion in particular, Republicans have a surprisingly strong voting record. It was Republican justices who not only created Roe, but who then saved it in Casey. And all the while, the radio and CPAC crowd decried why their own appointees couldn’t get in line.

We are not a political institution, the center-left Justice Breyer would say. Just check the data on inter-justice agreement rates. Chief justice Roberts would likewise remind partisans of their mistake: quit asking us for favors, he implied. Even Amy Coney Barret would insist that justices are not party hacks and that members are just trying to connect the dots. This is also how the greatest legal philosopher of our day, Ronald Dworkin, theorized the judicial mind to be.

But of course, the truth is that there were always some “crazies.” The Court has always had its share of what I call in my Supreme Court class, “wing voters.” These are versions of judges who do adopt orthodox views. But they are outliers. They dissent in favor of propositions and theories that will never become the law of the land. Both parties have these types of judges. These are the ones with the most extreme ideology scores and lower cross-party agreement rates. For Republicans, that is Thomas and Alito today. For Democrats, Sotomayor is the one trending in that direction. They also tend to be the favorites of the party faithful. In contrast, the more wishy-washy people – Breyer, Roberts, Kagan & Kavanaugh, e.g., — tend to have the highest agreement rates. And the fact that the Court has such a strong central tendency is the very thing that puts so-called “wing voters” in check. Or if you like, “swings defeat wings.”

But now all of that may be getting ready to change. The leaked draft on Dobbs suggests that orthodoxy is ascendant. It suggests, point blank, that the Court no longer has an immunity to the American social fever. The Court has succumbed to the political flu. Whether it is Thomas wanting a “fox hole,” as he once said, with his wife pursuing the Trump election hoax, or the a-priori results-oriented jurisprudence of some of Sotomayor’s aspirations, the symptomology of polarization seems officially here. The Court, in short, is finally sick. And this is important because it means that motivated reasoning, political attitudes, party affiliation and bent social imaginations (about the Constitution) will now become what defines the policy outputs.

For years, American political scientists have falsely cried “wolf.” Years and years have gone by with both American law professors and so called “judicial politics” scholars proclaiming, falsely, that the outputs of the Court were always driven by party and political attitudes. This scholarship was so poor both in methods and theory that it was laughable that our field, along with the law professors, kept pushing it. It was only philosophically rigorous academics who in classrooms would take the time to dispel these ridiculous charms. And now all of that appears to be over. For the wolf may finally be here.

If this decision does turn out to be what we fear, I ask one thing: just step back and watch (detached). What will you see? The radio people will do the equivalent of throwing candy in the air, claiming truth and liberation from their oppressors, and the pro-lifers will talk in their information networks about how their great struggle has finally been overcome. The narrative of these people as being exploited by Roe is a brazenly orthodox, ridiculous ideological, false, and as one-sided as can be. Why? Because Roe is a libertarian decision. It’s all about markets and freedom. There is an honest, bona-fide social dispute about what a cellular mass the size of a poppy seed (at week 4) with no brain development in early months ethically constitutes, especially when you consider the lost opportunity of planning another that would be carried through. State-mandated forced births might destroy future planned births. And it is ultimately religion or metaphysics which governs the status of an early case, anyway, for which reasonable people can easily disagree.

And so there absolutely no way that a state government should pick that choice. Individuals and markets should. A libertarian approach would let every person consult his or her faith as opposed to letting a certain political force in a community subjugate another. We don’t do free speech like that, right? We don’t say majorities in states who want to silence others from speaking are themselves being oppressed by the Court. For some things, we simply have to have a libertarian policy sphere where freedom rather than any government mandate controls a certain part of it. And so Texas or whomever isn’t being, and never was, exploited by Roe.

That is why the conservative talking points are pathetically confused and dogmatic. Returning this issue to the states isn’t something that makes lifers free from oppression; it is something that lets them oppress. And so when you see the radio people throwing candy in the air, just remember one thing. This isn’t about women, life or children – it’s about the Court. If the leaked Dobbs opinion is true, you can say goodbye to a Supreme Court that is an honest arbiter of the law. Of course you can’t say this goodbye to the liberal academics, for they already have cried wolf too many times. But you can say this goodbye to those honest watchers of the Court, like myself, who can no longer with a straight face see anything but robed politicians on a Supreme Court that can no longer fulfil the mission Alexander Hamilton talked about in Federalist #78.

Gone would be the idea that internal (doctrinal) constraint effectively mitigates political pathology and orthodoxy. Gone is the conception of the Court given to us by Hamilton, John Marshal, Ronald Dworkin and even the greatest pioneering judicial politics scholar, C. Herman Pritchett. And when you strip away what Dworkin called “the gravitational force of law” — the doctrines and principles that mitigate a justice’s party preference – you end up with a court of clans, not judges. What you end up with is something indistinguishable from the judicial views of the A.M. talk radio crowd on the one hand and the Rachel Maddows on the other. The Court becomes simply an extension of those platforms. What gets lost is legal epistemology and the institutional filters that are supposed to make the Court the least dangerous branch.

And so that is what is at stake. And it will credibly lead educated, neutral people to wonder whether American government should even have this institution anymore, much like Britons wonder about the Queen of England (monarchy). For it would seem high time get something going where the Congress can begin overturning these people or perhaps just picking a random jury of judges to decide case.

And so it is the very age of Marbury itself that is at stake in the American imagination.