Black Robes & Unlimited Power
Understanding the Supreme Court & Roe through the demise of the Jedi
Roe v. Wade’s days are numbered. That’s the operating assumption for Americans a day after POLITICO obtained an unprecedented leak from within the Supreme Court, a draft of the high courts likely ruling on abortion’s continued protection as a Constitutional right. All Hell is about to break loose in American politics, mark my words. The rending of garments, pulling of hair, and gnashing of teeth is about to commence. Why? Because the Court, these unelected, anointed wise ones on high in black robes, have opted in all their benevolence to return power to the people to decide an issue for themselves.
Did you catch that? Return power to the people. That’s what is happening here at the most fundamental level. In 1973 the Supreme Court wrested the issue of abortion access from voters and recategorized the subject as a Constitutional question. Look, 70+% of people support Roe v. Wade, and abortion access continuing to exist. That is unlikely to change or go away except in a handful of states where clear majorities exist who do not favor the practice. For half a century, debate on this issue has been artificially suppressed with the exception of occasional bursts at the state level, typically then put down by the precedent of Roe. Now the doors are going to be wide open for abortion expansion and restriction, for laws to be passed at the state or federal level. Laws that you can vote on and punish politicians for upholding or not upholding.
What we have here is an example of a consequence to asserting power and demanding uniformity of values. One state passes a law to national outrage and calls for organized action to overturn it, the matter is escalated to district courts, appealed, and lands in the Supreme Court…where now what happens is a national question. If left alone, it’s possible Mississippi would have had their approach, and Roe v. Wade would have gone untouched.
This Is The Way is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
Everyone hates the Supreme Court, until they love them again, because they need their all-powerful judicial authority for their current cause. We’ve seen the jockeying for Court seats escalate in intensity year over year to nearly apocalyptic level discourse.
There is a lesson here from the world of fiction about how we should think about the balance of power and protecting institutions from power-seeking rivals.
Consider the Jedi Council and the Jedi Order. In The New Yorker in 2016,
Americans are required to believe, with the same passion that they believe that the domestic champions in their peculiar sports are actually “world champions,” that the Supreme Court, like the Jedi Council, is made up of at least some superior, disinterested minds who exist in mystical communion with founding fathers dead two hundred years. Just as the inhabitants of the galactic Republic needed to believe in the wisdom of the Jedi Council, Americans need to believe in the Supreme Court.
During the height of the Galactic Republic, one Chancellor Palpatine (a secret Sith Lord) wanted to achieve Galactic Empire, and in so doing…put an end to the Jedi Order. How could he possibly do this without a public uprising against such an action? Well, by making the Jedi the bad guys.
That’s what the Clone Wars were for. The war we see happening in Episodes II and III of Star Wars are Palpatine’s plan in action, to delegitimize and soak in blood the reputations of the Jedi Knights. Palpatine engaged in a careful campaign to make the Jedi Council seen as the shadowy entity behind the continued conflict. Propaganda posters featured the Clones in a position of heroism and leadership. Building positive association with the Clone troops. The Jedi Order declined to be featured in propaganda for the Republic, because it cut against their understanding of their purpose in the galaxy. But this was to their detriment, as the public knew they were involved regardless. So the Jedi chose to deny themselves good PR and exposure to the people suffering during the war. By the end, the Jedi enjoyed little to no public support. When Palpatine framed them for an assassination attempt on his life, it was easy to get the public behind the Jedi’s destruction.
I’m telling you about this because here in the real world, the Supreme Court is the Jedi Order. Massively powerful, holds sway over matters of supposed life and death, are secretive and detached from the broader society, accountable to no one….and everyone only likes them when they’re useful. We do need them. But rivals for power are 100% committed to making you forget that.
An excerpt from my book (which you should buy): How The Force Can Fix The World: Lessons on Life, Liberty, and Happiness from a Galaxy Far, Far Away
Everyone loves the Jedi, until they don’t
……in my thinking here the role of the Jedi feels disturbingly similar to that of the Supreme Court. Democrats spent the better part of the Trump years casting themselves as vanguards of democratic norms and champions of democracy, while their Republican counterparts stood in as closet totalitarians looking to slash and burn every check on President Trump’s authority. They did this while simultaneously drumming up support for the dissolution of the legislative filibuster, packing the Supreme Court and at the fringes even advocating the dissolution of the U.S. Senate. But fringe viewpoints never seem to stay fringe for long.
The distribution and wielding of power by the Supreme Court has become a growing area of public discontent, because politicization of the institution is dangerously high. Like with the Jedi’s thousand years of galactic peacekeeping, it’s hard to say exactly where the line was crossed. But just our recent history offers a few possibilities. While Republicans didn’t start the SCOTUS Wars, they certainly escalated them. The 2016 suppression of Merrick Garland’s nomination to the Court by outgoing President Barack Obama was a deft, rational political move, but in retrospect stands out as an act of arson.
Republicans didn’t do it for no reason. Conservatives have had a bone of their own to pick with institutions, including the Supreme Court for its dictates including Roe v Wade, which fully legalized the practice of abortion and then there was Obergefell v Hodges, requiring the state recognition of same-sex marriages nationwide. It’s not that either ruling keeps Republicans awake at night, at least not Obergefell, but they’re major cultural flashpoints with objectively vague constitutional answers that were settled by unelected elites in dark robes seated in the glittering halls of Washington.
National solutions to what many consider to be state matters have raised the stakes on each consecutive presidency. Eventually, another one of those ancient justices is going to become one with the Force, and in the eyes of these warring partisans….it’s of utmost importance that you have control of the White House and Senate to fill that seat with an aligned culture warrior. Thus the blocking of Merrick Garland, and the smear campaign against Brett Kavanaugh, and the blatant hypocrisy of Republicans rushing through Justice Amy Coney Barrett before the 2020 election. This is war. The goal is not accomodation, or pluralism or fostering a society where there’s space enough for people of all races and creeds—it’s domination.
Something has to change. The direction we’re trending doesn’t have a happy ending and if our two political parties are no longer committed to a win-win approach to doing politics, it’s up to we the people to reset expectations.
The good news is that most Americans believe in the principle of balance in our political system. They want Republicans and Democrats to work together, to find areas of compromise or common cause and they absolutely do not want to live in a society where their political persuasion is too taboo to be articulated in polite company. While this feels both obvious and true, the bad news is that we certainly don’t see this preference for balance playing out in the conduct of our politicians or in the news media.
We have a huge challenge ahead of us as a country, which is to guard the balance of power between warring branches and not seek (out of political malice) the kneecapping of one in total favor of another. That may well be impossible. It is true SCOTUS has had too much power, as did the Jedi Order in Star Wars. In some ways, it was right for the Jedi Order to be torn asunder & ripped from institutions of galactic power. It was never the way of the Light or the Force for the Jedi to be intertwined with government. IRL, we have to now redistribute Court’s power on Roe, which it is essentially relinquishing while still upholding the necessity for balance…between individual and collective rights, between federal and local control, between the Executive, Legislative and Judicial branches of government.
Just as we have a challenge ahead, we have a choice to make in our own lives, as citizens, friends, lovers, neighbors and parents — to love one another despite. Despite all the difference, despite all the fear. The alternative is what I laid out earlier on this chapter, which is a fight to death over control. Government either exists to protect our rights or it exists to rule others. I’m a small government guy myself, and that’s because I’ve chosen the former. But to give up on ruling others means I’ve given up the goal of control and invested my efforts on dismantling the components of government that make it as scary to my fellow citizens and political opposites as the Death Star was to the Rebellion. I choose balance.
This is the way.