The U.S. Supreme Court’s Turn Toward Tyranny

Keynote for  the Ontario Bar Association Legal Conference, “Cross Borders”
May 4, 2023; Speaker: Heidi Li Feldman

Lecture notes prepared by Heidi Li Feldman

Part One: Outline of Remarks

1.   Overview of the current state of U.S. Supreme Court

A.   Composition of the current Supreme Court bench

i. Irregular withholding of Senate hearings to preserve a vacancy on the Court; three justices (Gorsuch, Kavanaugh, Barrett) appointed by Republican president for whom the vacancy was preserved

ii.  Privatization of the vetting and selection of nominees by Republican President

iii. Quid pro quo from Presidential candidate to key voting block

iv. Appointment of one justice by a President who had announced intention to remain in office extra-constitutionally: Barrett

B.   Ethics scandals

i. Missing and inadequate financial disclosures: Thomas, Gorsuch

ii. Ties to private organizations vetting and selecting Republican nominees: Thomas, Alito

iii. Conflicts of interest arising from various Justices’ spouses’ professional and political activities: Thomas, Roberts

C.   Shadow docket

Issuing orders without argument or explanation

D.   Radical, life-threatening decisions

2.  A closer look at some of the Court’s recent work

A.   New York State Rifle & Pistol Association v. Bruen

  • 6-3 opinion (Majority: Thomas, Roberts, Alito, Gorsuch, Kavanaugh, Barrett; Minority: Breyer, Sotomayor, Kagan)
  • Continuation of District of Columbia v. Heller, in which the Court introduced an unprecedented theory of the Second Amendment, privileging an individual right to possess firearms for self-protection in the home
  • Bruen is a major, novel extension of Heller:
    • [ ] Invalidated New York’s 117-year-old state licensing system for public carry
      • License for both possession and carry required showing good moral character, no history of crime or mental illness, and no other good cause for denial of a license
      • Licenses to carry came in two categories
        • limited purpose: for hunting, target-shooting, employment
        • general purpose: for all purposes including self-defense
        • to obtain a general purpose license to carry, applicant must show proper cause to carry
    • The Bruen court dismantled lower court jurisprudence for ascertaining whether gun control regulation is consistent with the Second Amendment, announcing a brand new presumption in favor of constitutional protection for individual possession and carry in all circumstances. The presumption can only be overcome if the government can show that its regulation conforms to the “Nation’s historical tradition of firearms regulation.” The majority then tied “historical tradition” to the state of affairs in England in the 1600s, in the American colonies in the 1700s, and in the United States in the 1800s. The majority insists that these states of affairs deserve “unqualified deference.”
      • Previously, the federal courts of appeal, across circuits, required challengers to gun control laws to first show that the law regulates conduct outside the scope of the right to keep and bear arms; if the conduct falls outside, the government may prohibit it entirely. If unclear whether the conduct falls within or without the historical scope of the right, courts would analyze how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right, on the understanding that the core of the right was self-protection in the home. If conduct close to the core is involved, strict scrutiny to make sure the law is narrowly tailored to achieve a compelling governmental interest. Otherwise, intermediate scrutiny, according to which a regulation need only be “substantially related to the achievement of an important governmental interest.”

B.   Chief Justice John Roberts’ official communications with the Senate Judiciary Committee, on behalf of himself and the other current Justices

  • The ethics scandals I discussed above have become part of the Court’s official business, though not in terms of formulating and adopting a binding code of judicial ethics for itself. Instead, the Court has insisted it will not adopt such a code, that it will resist Congress’s efforts to have it adopt a code, and that in any event, the justices do not need a binding code of ethics since they choose to be guided by a variety of sources, including established codes of ethics for lower court federal judges.
  • The Court has made its position known via communications from Chief Justice John Roberts to the Senate Judiciary Committee, which, earlier this week (on May 2, 2023), held a hearing on Supreme Court ethics reform. The Committee invited Roberts or a justice of his designation to appear at the hearing. In declining the invitation, Roberts offered a purported justification for his refusal. oberts sent a brief written response declining the invitation. Roberts attempted to explain his decision by noting that testimony by the Chief Justice of the Court before the Senate Judiciary Committee is “exceedingly rare” – though not unprecedented – as “one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”
  • From Senate Democratsrequest for clarification
    • On what date did the Justices subscribe to the Statement on Ethics Principles and Practices that you attached to your letter, and had the Justices subscribed to any previous statement of ethics principles and practices before that date? If so, please provide any such statement.
    • Has there ever been any censure, reprimand, admonition, sanction, or other penalty imposed on a Justice for failure to abide by any of the principles and practices now contained in the Statement on Ethics Principles and Practices? If so, what types of penalties have been, or may be, imposed? Is there a process by which the public may file, and the Supreme Court may receive, complaints that a Justice has failed to abide by these principles?
  • From Roberts reply
    • The Justices subscribed to the Statement on Ethics Principles and Practices on April 25, 2023.
    • There is no mechanism for enforcing the Statmente on Ethics Principles

3.  The turn toward tyranny

Both Bruen and the current Court’s approach to ethics regulation for the justices are part of the current Court’s turn toward tyranny. Tyranny is not the same thing as “judicial activism” or “policy-making” or being “political.” All courts are, necessarily, active political policy makers. They decide more and less dramatic cases with greater and lesser impact but they are all always interpreting law and fact in light of values and ideals. Sometimes courts misunderstand law or fact; sometimes they relies on values and ideals that are immoral or otherwise unethical. This can make a court’s decision wrong, but that is not the same thing as a court being tyrannical.

A.   Tyranny according to Anglo-American law

In Anglo-American law, tyranny is a legal term of art, describing a specific problem that can afflict a sovereign government in varying degrees. At it most serious, tyranny delegitimates a government to the point of justifying its dissolution through rebellion. John Locke introduced the legal concept of tyranny to Anglo-American law in his Second Treatise on Government, written during and in response to the events that culminated in the “Glorious Revolution”, which reorganized the government of the United Kingdom into a constrained monarchy through the creation of a parliament of fused powers.

Among the colonists Locke was the most cited political writer between 1760 and 1775, the period when the Amerian R evolution was effected in the minds of the people according to John Adams. The “great Mr. Locke,” as some called him, was read and praised by Adams and Jefferson, but also by Benjamin Franklin, Samuel Adams, Alexander Hamilton, and other founders. Benjamin Rush, called him “an oracle as to the principles…of government.”

Source: Locked Out

i. Locke on partiality and prejudice, arbitrariness, and tyranny

  • The basic problem Locke sets out to solve: People are naturally partial, not only to themselves, but also toward their friends and against their enemies. If every person is the judge of what is lawful and every person has the right to enforce the law, partiality will easily lead to a state of violence and emnity, with everybody suspicious of everybody else’s judgements and enforcement actions. This makes it impossible for people to securely pursue their own conceptions of their good – to pursue “life .. liberty, health…{and} goods.”
  • Civil government is the solution Locke proposes: an agreed upon institution to pursue the public good and to serve as a common judge of the lawfulness of each member’s actions.
  • But government can itself act out of partiality, either because the people in charge pursue their own self-interest rather than the common good or they pursue the interest of the government rather than the common good. In practice, this means the government acts against the common good and uses its power to further private or partial ends.
Supporting quotations from the Second Treatise
  • {I}t is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men.== I easily grant, that civil government is the proper remedy for the inconveniencies of the state of nature, which must certainly be great, where men may be judges in their own case, since it is easy to be imagined, that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it: but I shall desire those who make this objection, to remember, that absolute monarchs are but men; and ==if government is to be the remedy of those evils, which necessarily follow from men’s being judges in their own cases, and the state of nature is therefore not to be endured, I desire to know what kind of government that is, and how much better it is than the state of nature, where one man, commanding a multitude, has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases, without the least liberty to any one to question or controul those who execute his pleasure? and in whatsoever he doth, whether led by reason, mistake or passion, must be submitted to? much better it is in the state of nature, wherein men are not bound to submit to the unjust will of another: and if he that judges, judges amiss in his own, or any other case, he is answerable for it to the rest of mankind.==
  • So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but ==freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.==
  • {A}ll private judgment of every particular member being excluded, ==the community comes to be umpire,== by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together. ==Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another:==
  • Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every commonwealth; yet: First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. ==A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects.==

ii. Constitutions in the United States

Rather than create constraints on a monarch and a system of balanced or fused powers, early U.S. state constitutions as well as the organizating documents of the national or federal government dispensed with monarchy altogether.

B.   Signs and manifestations of judicial tyranny

 i. Constitutionalizing non-constitutional issues

ii. Unannounced, unexplained changes in court procedure

iii.  Expanding and entrenching systemic subordination on the basis of any combination of race, gender, sex, and religion or on any of these grounds individually

iv. Proximately causing death

C.   Structural causes of Supreme Court’s propensity to tyranny

  i. No accountability to voters

ii. Life-time tenure

iii. Judgments can be reached by a simple majority

D.   Current factors exacerbating the Court’s structural propensity to tyranny

i. The Republican Party has committed itself to anti-majoritarian governance at all levels and in all branches of government

ii. The Republican Party’s wealthy donors, voting base, and elected officeholders expect and rely on the Supreme Court to further anti-majoritarian lawmaking by legislatures or by courts

4.  What is to be done?

A.   Institutional redesign

i. Via Congress

ii. Via the Supreme Court

B.   Locke on rebellion

Part Two: Recommended Further Reading

1.   Supreme Court opinions and other official communications from the Court

A.   New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S. __ 142 S. Ct. 2111 (2022)

B.   Communications between the Senate Committee on the Judiciary and Chief Justice Roberts regard the Judiciary Committee hearings on Supreme Court Ethics Reform, held on May 2, 2023

                i.         Letter from the Senate Judiciary Committee to Chief Justice John Roberts, April 20, 2023) (inviting Roberts or another justice designated by him to testify at the Committee’s May 2, 2023 hearing on ethics rules governing Supreme Court justices and possible reforms to these)

              ii.         Response from Chief Justice John Roberts to the Senate Judiciary Committee’s invitation to testify at hearing on Supreme Court ethics, April 25, 2023 (declining to appear, not designating another justice to appear, and including a “Statement on Ethics Principles and Practices” signed by all current Supreme Court justices)

             iii.         Request for clarification from Democratic members of Senate Judiciary Committee to Chief Justice John Roberts, April 27, 2023

             iv.         Reply to request for clarification from Chief Justice John Roberts to the Democratic members of the Senate Judiciary Committee, May 1, 2023

2.  Commentary by Heidi Li Feldman

A.   Public Nuisance Liability and the Irrelevance of the Second Amendment, Duke Center for Firearms Law Second Thoughts Blog, April 12, 2022

B.   Next on the Supreme Court’s Chopping Block is Protection for Victims of Gun Violence, Slate, June 27, 2022

C.   Let’s Stop Pretending Clarence Thomas Can Read the Framers’ Minds, co-authored with Dahlia Lithwick, Slate, February 15, 2023