Supreme Courts have a unique feature in the American system: they get to define the precedent that other courts must follow. Therefore, contrary to what you might hear in certain corners of social imagination, Supreme courts are NOT the precedent-following institutions; the lower courts are.
But in terms of jurisprudence, this can get a little weird. If precedent isn’t a mandatory truth, what is truth in a supreme court? The answer in America is positivistic: only the officially promulgated legal text. That is to say, only the statutes, regulations and constitutional text lawfully enacted in the system counts as the pre-existing stuff that must be obeyed (in theory).[1] There are many schools of jurisprudence, in fact, that became flawed or discredited exactly for trying to promote other items into this mandatory category, the other items being: history (originalism), logic or axiom (classical legal thought), a-priori first principles (natural law), scientific studies (sociological jurisprudence), or public policy (realism). It’s not that these other items are irrelevant; it is that they simply remain “advisory” in the system. You can think of them as being sort of like tie breakers.
But as American judicial philosophy progressed, and as the law books swelled with decisions, something curious happened. People began to notice that certain precedents were becoming foundational for others. The best example is Marbury v. Madison. Any act of judicial review relies upon this sole precedent. And so, a clever deduction then ensued: even the precedent-defining institutions (supreme courts) need an authoritative pre-condition, beyond that of official legal text, to do their jobs. They need, in short, judicial assertability conditions. And this means that key foundational precedents should now get promoted into the judicial heaven.
And this led theorists to start discussing the idea of the “super-precedent.” The super-precedent, quite simply, was the thing that naturally emerged to structure the discourse for how to decide the instant precedent as being true or false. Think of it as a Mother Goose that had become validated. And debates then ensued as to which of the all-star cases passed down through history should be considered a “super-precedent.” And of course political perception influenced this: Democrats thought that anything Democrat-joyous counted as beloved, while Republicans thought otherwise.
But here is the point. This discourse now appears to be gone. Dobbs just killed it off. There are no super-precedents any longer. Nothing is off the table. This whole thing was just pitched out the window. What matters is the votes, the will, and the noise. One wants to say, SCOTUS has just become Roman.
Of course, even prior to Dobbs, we all knew that various Republican sacred cows could be tossed out by future Democrats – including those stellar beacons of freedom like Citizen United (campaign finance), Heller (guns), and BMW (punitive damages). But what is different is that these issues were always understood as being politically contested subject matter, much like Republicans contest detainee rights, decisions that hamper police, gerrymandering, and whether a coach can pray in the toilet room. Certain things squarely belong to the judicial game – no one has ever disputed that.
But prior to Dobbs, we all thought that a basic internal line existed. Think of it like a warranty for a product that you buy. I once had a discussion with a colleague who thought that former president Donald Trump was dangerous because he might not leave office, a position Bill Maher had been taking for years. I said to him, laughing, that this can’t happen in America – our institutions are too strong. That would clearly be illegal; the Court would never allow it. “We’re not Turkey,” I said with pride.
And now the question is whether we are, perhaps, a special kind of American turkey. Because if Dobbs is signaling anything it is that the internal lines are now gone. Oh sure there might be theoretical political barriers for justices, like getting impeached or having judicial budgets reduced, but there does not seem to be any epistemological barriers, which is the thing that kept American planetary government in motion – a kind of judicial gravity.
The simple question before us is what will the shark NOT eat? Sharks are fun creatures because they are neither chess players nor short-term maximizers. They simply eat what they do. And Americans are now waking to the fact that, instead of having a Supreme Court, what they have is a shark in the American Amity with a mouth about yay large. (And to fix it, yes, they are going to need a much bigger boat).
For me this is not about women or abortion as a policy — I don’t care about that. It is about the Court becoming an afflicted entity in the American sickness. It’s about partisan bodies inserting their people for the purpose of extracting certain results, the grammar being that of a bank robbery. I saw one person recently describe the Court as being a “vending machine,”[2] which I think is a frighteningly accurate picture. Those of us old enough to remember the 80s can recall examples of where American jurisprudes would juxtapose SCOTUS against the old Soviet constitution and its courts – saying, “Ha ha,” ours has internal integrity while the other is a joke. I am not so certain that this distinction can be clearly seen now in the age where epistemology has died.
The death of the super-precedent and the rise of judicial ideology has officially ended the Marbury-Court that all of us used to know. It’s all over now. And those of you who celebrated “political courts” in years past and who wrongly cried (or championed) “wolf” – you, too, own a good measure of the blame for this.
(More to come).
[1] And of course, it is the Court that has the political power to say whether such a following has occurred. Marbury v. Madison.
[2] This was Dahlia Lithwick at: https://slate.com/news-and-politics/2022/06/inside-the-supreme-courts-radical-shift-to-the-right.html