On Monday, Politico leaked a draft opinion from the Supreme Court of the United States that apparently overturns abortion rights. This is likely the first time in modern history that a SCOTUS draft opinion has leaked while the case is pending, legal experts say.
“Supreme Leak,” was the headline over at foxnews.com. CNN.com reported the leak a “stunning breach of court confidentiality.” The New York Times headline blared: “Leaked Supreme Court Draft Would Overturn Roe v. Wade.”
The reason this is news is not that it’s surprising. Like Donald Trump, this conservative SCOTUS supermajority is doing everything that everyone expected it would do when it came into power.
It’s just that nobody really believes the end of the world will come until it does. More than an overturned legal precedent, for me this news represents the possible end of the Supreme Court’s legitimacy in the minds of most Americans.
And a democracy without legitimacy isn’t a democracy anymore. Laws without legitimacy aren’t laws. What comes next is, well, lawlessness. That’s a frightening prospect, indeed. It took an associate justice in the minority (in more respects than one) to clearly articulate where all of this headed.
“If the draft opinion or something like it is ultimately issued, it will produce rifts at the court that could test its legitimacy,” the New York Times reported Monday night.
“At the argument, the court’s three liberal members said that overruling Roe soon after a change in the court’s membership would damage the court’s authority. Indeed, Justice Sonia Sotomayor said, doing so would pose an existential threat.
“‘Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?’ she asked.
“‘If people actually believe that it’s all political, how will we survive?’ she asked. ‘How will the court survive?’”
Sotomayor’s pleading questions remind me of the Obama administration’s desperate efforts to save the American economy roughly a decade ago. Most of the administration’s policies were centered on injecting confidence back into the financial system, because if people don’t have any faith in the market, then the market will not exist (see Ron Suskind’s 2011 book Confidence Men).
It turns out that, some three centuries after the Age of Enlightenment, after humans have been thrust into space on the power of our scientific ability, our social world — including all of the technological bells and whistles that made all of that so-called progress possible — is still centered on belief.
What happens when a society’s mythology ruptures? How do we fix this kind of shattering? We don’t need any more novel devices, we need new guiding mythologies and beliefs. There’s a clear need for moral innovation, but the world is wanting in wisdom entrepreneurs.
Perhaps more than any other American institution, the Supreme Court embodies the severe “achievement gap” between modern technology and modern values. What Gordon Allport wrote in the preface to the 1954 edition of his classic work, The Nature of Prejudice, resonates just as powerfully today.
“Civilized men have gained notable mastery over energy, matter, and inanimate nature generally, and are rapidly learning to control physical suffering and premature death. But, by contrast, we appear to be living in the Stone Age so far as our handling of human relationships is concerned.”
Unfortunately, wisdom isn’t sexy and neither is the Supreme Court.