The legal landscape of the past few weeks and months has prompted questions about who and what are legitimate interpreters and performers of the law and what happens when you take charge of the law. Mississippi and other states have taken recent Supreme Court staffing changes as an invitation to challenge constitutional court rulings on abortion, and those states now appear likely to prevail.
In oral argument in Dobbs v. Jackson Women’s Health Organization, last Wednesday the three Liberal justices often appeared to deliver funeral chants, as if they had accepted a loss and spoke for posterity. Mississippi’s ban on abortions after fifteen weeks of pregnancy, which boldly flouts court precedents setting the limit at around twenty-four weeks, is expected to be upheld by conservative judges. The arguments offered little reason to hope that Roe v. Wade will be reaffirmed; the most recent Conservative judges, Brett Kavanaugh and Amy Coney Barrett, signaled no qualms about dismissing Roe as ill-decided, which would make a majority of at least five. At a time when the legitimacy of the Court seems extremely fragile, it is revealing that the majority response to the challenge of the supremacy of Court decisions appears to be acquiescence and approval.
The open challenge to the authority of the Court may largely reflect a spirit of legal self-help that runs through the country. For example, we normally think the role of law enforcement belongs to states, not random neighbors, but two recent homicide cases have appeared to involve the vigilante. On November 19, in Kenosha, Wisconsin, Kyle Rittenhouse was acquitted of all charges for shooting three people, including two fatally, during anti-racial justice protests in August 2020. Rittenhouse, who was then ten- seven years old, had traveled to Kenosha from his home in Illinois. with a semi-automatic weapon, allegedly to keep the peace and prevent the destruction of property. The jury concluded that he shot his victims in self-defense because he reasonably feared his own death or grievous bodily harm.
On November 24, a Georgia jury rejected a self-defense request, dismissing the murder convictions of three white men who, in February 2020, hunted down and shot dead Ahmaud Arbery, a black man who was jogging. The defendants claimed that they prosecuted Arbery on suspicion that he had committed burglaries in the area and that the fatal shots were fired in response to the fact that he allegedly took a rifle that one of them pointed at him. They attempted to justify the prosecution by citing a Georgian citizen arrest law that allowed anyone with “reasonable and probable grounds to suspect” to arrest an alleged fugitive on the run. The law has since been repealed, but similar laws have long existed in almost all states.
Any self-defense revivalism today goes hand in hand with an increased capacity of private citizens to bear arms in public. The Supreme Court is considering the most important gun rights case since ruling over a decade ago that the Second Amendment guarantees an individual’s right to keep handguns at home to defend themselves. On November 3, he heard arguments challenging a New York law that allows a license to carry handguns concealed outside the home, but only on presentation of “just cause.” The perverse and self-fulfilling truth is that as gun ownership has proliferated, an individual’s claim to need a gun for protection has become more plausible. But the idea that ordinary people should carry guns stems directly from the tradition that advocates the use of force by private citizens to uphold the law, instead of – or even against – the state. Looking at the history of carrying guns in early America, conservative judges seem likely to extend the right to carry guns to guns on the streets.
The spirit of vigilance is also noticeable in a court case considering a Texas law that bans abortions after about the sixth week of pregnancy. SB 8 does not specifically authorize state officials to enforce the law, allowing only private citizens to do so, suing an abortion provider for damages of ten thousand dollars for each procedure performed – this to which several judges referred, during the pleadings of November 1, as a “bonus”. The law was designed to avoid being challenged in federal court. Arguments revolved around whether a state could effectively shield unconstitutional laws from review by federal courts simply by delegating their application to the general public. An amicus brief filed by civil rights organizations linked SB 8 to “the violent history of citizen arrests and racist vigilantism in the South”.
For the most part, even conservative judges seemed offended by the Texas ploy, not least because Texas had to admit that liberal states could use the same enforcement regime to isolate unconstitutional gun rights restrictions from any challenge. . The court will likely push back and allow abortion providers to pursue a constitutional challenge of SB 8 in federal court. But the terrain on which such a challenge could have ultimately succeeded will have changed dramatically. Unconstitutional when it came into effect, SB 8’s six-week ban may well be constitutional in several months, even if its enforcement mechanism is not, if the court issues a ruling in Dobbs that overturns Roe. . Yet, notwithstanding what happened publicly during Dobbs’ pleadings, a compromise could still be found behind the scenes, in which Chief Justice John Roberts allows for the maintenance of a fundamental right to abortion, while allowing the Mississippi and other states to ban abortion as early as fifteen weeks, and leave it for another day to decide how much before it’s too early.
During last week’s arguments, Judge Sonia Sotomayor lamented: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are only political acts? The stench, so to speak, is a byproduct of the unresolved ambivalence within the legal system about who has the power to decide what the law should be. Conservative judges seemed eager to “return” the abortion issue to the people. But the point of a fundamental constitutional right is that it should not be at the mercy of the people, especially when the composition of the Court itself has been altered by political means for this purpose. The spectacle of states brazenly defying the Court’s constitutional precedents, followed closely by the Court’s rejection of those precedents to make illegal actions legal after all, would effectively communicate that the Supreme Court is not, in fact, supreme. . ??