One of the funniest films of all time, Mel Brooks’ The Producers (1967) follows con artists, played by Zero Mostel and Gene Wilder, who come up with a fail-safe plan to defraud investors by selling the rights to a musical , which is supposed to flop. Its absurd plot and inept actors take the stage at the premiere, and the producers retire to the nearest bar to celebrate the success – unaware that what is perceived as optimal is their Waterloo: the audience finds the play a farce. The comedy becomes a smash hit. The producers end up as prisoners unable to pay huge profits due to cheated investors.
There is a tautology that Dobbs v. Jackson Women’s Health Organization celebrates early. In addition to unintended consequences, there are issues of judicial transgression.
Judiciary activism was not problematic because of a left-wing agenda in the mid-20th century: it is an unelected judiciary pursuing an agenda at odds with majority sentiment — unaccompanied by the gradualism advocated by Judge Ginsburg or that masterfully presidents demonstrated communication skills Franklin Roosevelt and Ronald Reagan. Confusing the who with the what is invariably unwise.
Americans are not an ideological people. The experience of the Russians under Stalin and the Chinese under Mao suggests that practically none are.
Judge Holmes declared: “The life of the law was not logical; it was experience.” While ideological consistency and rhetorical flourish have their merits, written words go so far. The audience is alienated afterwards.
The statement “The business of America is business” is a reminder that Americans want results that are elegant on paper but produce imperceptible improvements, rather than coherent theories. They want more quality of life “where the rubber meets the road”.
Those striving to find Roe v. Undo Wade, see results. Where unintended consequences create difficulties for individuals – families whose teenage daughters have been raped or died are unlikely to be kind to those who provide the resolution; ditto bankruptcies and suicides – what ideologues see as positive is experienced more as social engineering based on principles than pragmatism.
Americans are a pragmatic people. This unchanging fact boggles the ideological zeal of the Supreme Court majority.
Though Americans are religious—the continent’s settlement began with a quest for religious freedom (and economic endeavor), they cannot bear to see one state-sponsored religion impose another’s theocratic utopia. The separation of church and state is inviolable. Judges, politicians and unsuspecting individuals will get their compensation.
Movements are tides. They reach high water marks and low water marks. Not knowing when to reach the maximum achievable results in overreach. That moment is upon us.
Just as Nixon, Reagan, two Bushes and Trump were the logical conclusion of the Warren Court and the Johnson presidency, the country will witness the logical conclusion of the Burger, Rehnquist and Roberts courts and the Trump presidency. While unlikely to happen immediately, a correction will come as history provides clues.
The pursuit of divisive extremes – whether left or right – only offers help and comfort to enemies like Vladimir Putin.
It will be healthy to see greater diversity among Supreme Court justices: Baptist, Methodist, and Presbyterian—perhaps Buddhist, Hindu, and Muslim—the bottom line is that those who sit on the Supreme Court are best read books and newspapers extensively and pay good attention to political opinion polls and keep their fingers on the pulse of the nation.
The dynamic has not changed since President Jackson responded to an unwelcome opinion, commenting, “John Marshall, the Chief Justice, has made his decision. Now let him enforce it.” Compliance hinges on respectful outcomes. Today the rule of law is not sufficiently respected. Courts cannot enforce compliance unless the edicts reflect broad sentiments and not those of vocal minorities.
Jay Wiener is a Northsider