The Court’s New Clothes

Having discarded cloaks of judicial temperament, far-right extremists on the Court are hoping no one notices their naked political activism.

Public opinion of the Supreme Court’s job performance is plummeting: Only 40% of Americans give the current court a passing grade, down 18 points (!) from just a couple of years ago, and the six members of the court’s right-wing majority claim to be baffled by the plunge. To understand why their reputations are crashing, the Alito-Barrett-Gorsuch-Kavanaugh-Roberts-Thomas clique should read Hans Christian Andersen’s classic folktale, “The Emperor’s New Clothes.”

Written nearly two centuries ago, the fable depicts a vainglorious royal primping prior to a public procession as his fawning courtiers lavishly praise the magnificence of his new attire.

As the promenade commences, the townspeople cheer his appearance: “Oh, how fine are the emperor’s new clothes! Don’t they fit him to perfection? And see his long train!” Then a little child pipes up, “But he hasn’t anything on.” One person after another whispers the child’s remark, passing it along until the whole town cries out at last, “But he hasn’t got anything on!”

The emperor shivers, but thinks, “This procession must go on.” So, he walks more proudly than ever as his noblemen hold high the train that isn’t there at all.

And so it goes with the far-right extremists on today’s high court. Having discarded their cloaks of judicial temperament, they’ve been parading through case after case, hoping no one notices their naked political activism. But there it is, so plainly at odds with the will of the people, that even Americans who normally pay no attention to court-case mumbo jumbo can’t help but see their butt-ugly partisanship. The great irony of the Supremes’ use of their judicial power to advance their radical political agenda is that they are destroying the legitimacy of the court itself, thereby undercutting the strategic value of a governing branch that their corporate and ideological sponsors have spent years and hundreds of millions of dollars to capture.

We commoners have been instructed from our earliest government classes that the nine eminences of the Supreme Court are not political players, but the wise embodiment of America’s majestic principle of “Equal Justice Under Law,” a phrase engraved across the broad facade of the Greek-styled temple in which they preside. Yet, even before the current gaggle of right-wing legal operatives launched their ugly reign of political activism, the court was rarely a democratic bastion of justice and equality. Rather, in its 233-year history, members have most often served as tenacious protectors of wealth, property, privilege and the corporate order, fending off the egalitarian aspirations and demands of riffraff like you and me.

In fact, the Supreme Court is peculiarly un-American, intentionally structured as an aloof, quasi-autocratic, opaque governmental authority, a jarring anomaly in a nation purporting to be a democratic republic.

Consider three oddities of the littlest and least-known branch of government:

No. 1: The court is inordinately powerful. There are no appeals to their proclamations. With no public scrutiny or accountability, they can conspire on cases of their choosing, and a bare majority of only five can arbitrarily overrule presidents, congresses, governors, legislatures, other courts, voters, science and even the most intimate personal choices of ordinary, supposedly self-governing people.

No. 2: With only rare exceptions, the court’s makeup bears no resemblance to a government of, by and for the people. Most have little in common with regular people, have no real contact with grassroots America, and are dangerously ignorant about the struggles of working-class and poor families. They tend to be products of exclusive law schools, and they’ve typically had highly paid careers as white-shoe lawyers, lobbyists or trusted staffers for right-wing political interests. Their separation from workaday Americans is ensured in perpetuity, for the judges:

  • are enrobed for life
  • make up their own rules of ethical conduct
  • are not subject to any independent performance review
  • and operate almost entirely behind closed doors.

No wonder, then, that this little group — with truly awesome power over our lives — is so frequently out of touch with our experiences, needs and beliefs.

No. 3: Despite its prominence, pomp and presumption of power, the Supreme Court is an astonishingly weak political entity! The aloof honorables can make all the pronouncements they want, but as Alexander Hamilton noted, they have neither the power of “sword or purse,” nor an army to enforce their rulings or compel the people to comply with what they say. Their only real authority, the sole source of their legitimacy, is the one virtue the present bunch is so stupidly squandering: judicial integrity. In the long haul, We the People will accept their judgements as the law of the land only to the degree that their rulings appear to be fair — i.e., based on honest legal procedures; the common good; and fundamental principles of justice. A court with no judicial integrity is an emperor with no clothes.

Jim Hightower