The Supreme Court's Unleashing of Demons
“If [in light of Friday’s Supreme Court decision] the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that.”
— California Governor Gavin Newson, L.A. Times, December 11, 2021
“Maybe the Court should have said, ‘We’re not going to take it, goodbye.’”
— Former Justice Sandra Day O’Connor speaking on Bush v. Gore in 2013
Celeste Dupuy-Spencer, “Don’t You See That I Am Burning,” 2021, oil on canvas, 85 x 85”
If you are a gun fan and advocate who lives here in California, you need not read any further (just know you have fair warning). Or on second thought … read it to understand the legal tsunami headed your way. Well, coming towards your tribe; it’s not personal. You should consider moving to one of the states that simply love open-carry laws, maybe to one of those towns where the local mayor has called for gun carrying to be a legal requirement (yes, there are such places here in America). Now, there’s a beautiful life.
On Friday, December 8th the U.S. Supreme Court issued a ruling that let stand Texas’ SB 8 anti-abortion “law” deputizing private citizens to take the law (and the well-being of many women) into their own hands — with a $10K incentive as an added bonus. The State can’t be sued because, well, it’s not involved. And here’s the kicker: the Court’s five intellectual bozos are with you, you self-appointed Texas Ranger. If you have envisioned a world in which everyone understands how life really does begin at conception, and agrees that, however conceived, to halt that life from being born is murder, there is no doubt at all that this really IS your Court.
You may recall that I focused on this topic recently (“Shocked but not Surprised”) and speculated on how it is likely to play out (hint: making abortion illegal will have the opposite effect from eradicating it, though a good many lives will be damaged or ruined). I know what you think. Everyone will soon come around thanks to the ruling, and abortions will no longer take place. At all. Thanks to the Supreme Court, a 100% consensus is now around the corner. One can just feel it coming, and with it will come either Utopia or, better, Rapture.
Jan van Eyck, “The Last Judgement,” 1440
Let’s take a look at the larger meaning of the Supreme Court ruling. And Governor Newsom’s statement in response.
To be clear, this ruling is not a constitutional decision. Oral arguments were heard in early November, and initial speculation is that even this court will not uphold SB 8’s constitutionality. The point is that they are permitting it to stand in the meantime. That probably translates into at least another six months. A lot can happen in six months; for example, other states may pass laws that are similarly framed. Which brings us to Governor Gavin Newsom of California.
Newsom was ready with his gun law concept, actually limited only to assault weapons and so-called ghost guns (unserialized kits assembled at home into untraceable firearms). In anticipation of the Court’s ruling, he had more than a month to prepare the draft legislation so that he could announce it the very next day following the ruling. This announcement served a clear political purpose, no question; supporters in California and around the country were demonstrably excited even while being disheartened at other recent developments, led by the continued failure to pass either voting rights bills or the second part of President Biden’s Build Back Better plan. Following his recent smashing of a recall effort, this is the sort of thing that signals the virtual certainty of his reelection — as well as Newsom’s national profile.
Jake and Dinos Chapman, “Hell” (detail), 2000 (destroyed, 2004),
60,000 toy soldiers. Photo: Andy Butterton
But this is about something much larger than one man’s political strategizing. It send a message directly to the Supreme Court: Texas’ SB 8 is less about abortion than it is about the nullification of the authority of the Constitution of the United States. We are staring at the far side of the Brown v. Board of Education era. This court far more closely resembles the one that ruled on Plessy v. Ferguson (1896). It ruled that “separate but equal” facilities did not violate the 14th Amendment; it was a 7-1 decision, suggesting that at the time it was not even considered very controversial.
A highlight of the November oral argument was Justice Kavanaugh’s question to the State of Texas’ attorney, whether gun laws could also be insulated from legal review. The response: “Yes.” There is, therefore, no lack of awareness that SB 8 is a knife that, in slashing the Constitution, cuts in both directions. Newsom himself has now articulated the four potential effects of his gun bill in a Washington Post Op-Ed headlined: “The Supreme Court opened the door to legal vigilantism in Texas. California will use the same tool to save lives” (12/11/21).
Newsom lays out very clearly the four potential outcomes that the Supreme Court decision arrives at come next summer:
• The Court upholds SB 8 as constitutional, and applies subsequent rulings consistent with this standard.
• The Court strikes down SB 8 as unconstitutional, and applies subsequent rulings consistent with this standard.
• The Court finds a narrow ruling that parses the difference, eg. Striking down or upholding some part of SB 8 without explicitly ruling as to its constitutionality. Narrow rulings on subsequent rulings would most likely follow, with unpredictable results.
• The Court finds a way to rule SB 8 constitutional, but in subsequent cases rules equal applications unconstitutional based on transparently partisan grounds.
This last possibility, the most politicized and therefore odious of the four outcomes, would flow from what Newsom smartly calls “gerrymandered” decisions in which the Court would pick and choose the rights to which this standard applies. Given that a 5-4 ruling allowing SB 8 to stand pending their later decision, there is a six-month window during which its theoretical constitutionality applicable to that of blue state alternatives would be protected. The court challenges would presumably follow for a number of years.
To get there they would first have to uphold SB 8. State laws deployed to take advantage of vigilantism so as to circumvent and nullify constitutional guarantees that apply to guns, regulation of business, education, free speech, or any other rights must stand, and the process of separating a theoretical two non-reconcilable Americas will thus enjoy the force of law. The damage would be incalculable, indeed possibly fatal to the authority of the Constitution itself. This would be far in excess of previous nakedly partisan rulings, such as Bush v. Gore (2000). Perhaps these justices at some future date would echo Sandra Day O’Connor’s confession that in a key ruling she put party over country, partisan favoritism over rule of law; but in both cases such honesty would come far too late to reverse the damage. As Newsom writes, “… sometimes you don’t realize you’ve made a mistake until you see the consequences of your actions come true.”
Xavier Cortada, “Bush v. Gore,” 2017, oil on canvas, 48 x 36”
But Court watchers generally, if not universally, seem to agree that SB 8 will be struck down. If it is, and to me this is obvious on its face, then any new laws such as what Newsom proposes will presumably be swept away. Does that mean they are a waste of time and money? Not at all. A highlight of the November hearing was Justice Kavanaugh’s question to the State of Texas’ attorney, whether gun laws could also be shielded from legal review. The response: “Yes.” Kavanaugh’s attention was drawn not by Newsom or a pro-gun control organization such as Everytown, but by the Firearms Policy Coalition, a pro-gun rights advocacy non-profit.
I don’t want to suggest that the question of constitutionality is in the slightest bit unclear; it is a laughable case on its face if you are a believer in constitutional freedoms and the rule of law. The supposed “legislating from the bench” mantra of political conservatives back in the days of the Warren Court may have been hyperbolic then; I submit that the more conservative the composition of the Roberts Court has become the more it has done exactly that. But by design.
So if SB 8 is declared unconstitutional are leaders such as Newsom simply wasting taxpayers’ time and money? Newsom offers two responses. First, his proposed law does not propose to nullify a constitutional right at all, but to bolster enforcement of existing law. Second, to remain passive in light of Texas’ direct attack on the constitution amounts to unilateral disarmament. California, having opposed SB 8 before the Court, is prodding that court’s political agenda. Newsom acknowledges this; should the High Court uphold SB 8 we gain a road map to actually use that to protect lives. But if it strikes SB 8 down, and such newly proposed laws as Newsom’s with it, the Governor will be pleased to have helped center their attention on the correct decision, which will be of some value to women’s rights.
I have no doubt that the three justices appointed by the former president arrived with a powerful pre-disposition to reverse Roe. That they are all not merely willing but eager to impose their personal belief on the Constitution I accept as a given. The question that artists and other creative people face when confronting their work on a daily basis, applies here: where does this lead me? It is an opaque process in which outcomes are necessarily murky, and clarification only leads to fresh questions. This is the core nature of aesthetics, and its question-response is not the same as for either moral or legal matters. But the aesthetic process provides an Occam’s razor that can be readily applied across disciplines. Confronted with a multitude of creative options, one must choose. The consequences of each choice add one step leading to the next choice; and the compilation of choices, at any given point in the creative process, add up to a large enough whole to be seen with some degree of definition.
Henry Fuseli, “The Nightmare,” 1781, oil on canvas,
40 1/16 x 50 1/16”. Courtesy of the Detroit Institute of Arts
For artists, too clear a definition is an invitation to doubt and revision. At a certain level — intellectually, emotionally, spiritually — that is why artists are so often regarded as standing apart from ordinary society. Normally we expect that with greater certainty comes comfort and relief, signifiers of the settled and stable life. A happy life. For centuries artists have embraced processes and images that do just the opposite. A Supreme Court ruling should, and often does signal a national feeling of comfort and settled reconciliation. But that is not actually true, not historically. Symbolically, if not in fact, this institution is the point at which public debate is transformed into settled law; disagreements should at that point be set aside. That is why Gore conceded. But the twenty years since Bush v. Gore have steadily upended all of that.
We are now approaching a moment at which a vast segment of the public is prepared to dismiss the Supreme Court as no longer capable of living up to what it symbolizes. It could at this moment, and if not now then with another decision soon to be rendered, that the Court provides the means of its own demise. The weight of morality attached to abortion or to gun possession is now being subjected to openly coercive means that by intent reduces the U.S. Constitution to nothing more than a sheet of paper. If the Supreme Court upholds SB 8 it will have steered us into a dead end in which one set of moral assumptions negates the rights of those who do not share those assumptions in one instance; but similarly reverses the same assumptions in another instance. Or, if the Court also upholds laws that mirror SB 8 coming from liberal California, it will have invited a legislative free-for-all in which each state reshapes both code and culture without regard to federal law or the Constitution.
The aesthetics in both cases add up to the same conclusion: it is not a pretty picture.