“Whatever is my right as a man is also the right of another; and it becomes my duty to guarantee as well as to possess.”
— THOMAS PAINE
July 2023

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Dear Mr. Chief Justice,

What a Term the Court has had, and what a finish! I write as a citizen who understands and reveres the Supreme Court in its role in our system of government. And equally, a citizen who worries about where that is headed. You have publicly bemoaned increasing assertions about the Court’s illegitimacy, and you are the person best positioned to do something about it.

Let’s start by recognizing that the Court is not democratic, its members having been appointed for life and placed beyond the easy reach of accountability. The genius of the Constitution made it that way, and Justice John Marshall in Marbury v. Madison made it explicit by holding that the Court may overrule acts of Congress. To what end? The framers worried about excessive government power, whether by the federal government over the states or by government over the individual. The Fourteenth Amendment makes it clear that state governments are subject to the same restraints. Like the Electoral College, the idea is that limits were and are needed on the power of the majority to determine the rights of minorities. If not, we would not have a Bill of Rights.

In recent years three Supreme Court decisions and a brewing corruption scandal have caused much of the country to question the Court’s role and authority. We simply cannot live with that erosion of faith, any more than Dorothy could believe in the Great Oz once she had looked behind the curtain.

About the corruption, please extend the disclosure and gift requirements demanded of all other Federal judges to the Justices. It is simply not helpful for Justices Thomas and Alito to say they’d discussed their ethical requirements with some guy named Joe. If all other Federal judges are limited, you and your colleagues should be too. When I meet an old friend who serves as a US District Judge for dinner at a restaurant, he insists on sharing the bill. And I’ve never had a case before him or for that matter before any Federal judge. When I took then-Senator Obama out for a round of golf, he insisted on paying the guest and caddie fees. Not difficult to implement. What we have now may not actually be corrupt, but it smells bad.

The three cases that have caused even worse damage are Citizens United, Heller, and Dobbs. Before Citizens United, the problem of money buying political favor had long been understood and many efforts were made to deal with it. Senators McCain and Feingold struggled mightily with campaign finance and the Congress passed a scheme that seemed to work well on the whole. It has always been true that celebrity and success bring some amount of power, but it need not be unlimited. Then along came Citizens United and the flood gates opened. Our elections now look like auctions for power, diminishing people’s confidence in government and the luster of our scheme of government in the eyes of people around the world. And this diminution is independent of Trump! Doctrine, as you well know, can always be managed for a purpose, and there was nothing inevitable in the holding of Citizens United. It may have started as a good idea but it has gone terribly wrong.

Another awful decision is Heller. As Chief Justice Burger said in an interview five years after his retirement, Second Amendment jurisprudence has become a fraud on the public. That Amendment was included to protect the states from the feared power of the new federal government. It was intended to protect militias from central government tyranny. In no respect was it meant to create a constitutional right for individuals to have guns, and surely not for the public to have, as they do in many places, easy access to military grade weapons which people are free to carry around. As we have seen, if people can have such things some will use them, and we are cursed by mass shootings all the time. Thirty people in Baltimore last weekend, for example, this week in Philadelphia and Fort Worth. Heller and its progeny are turning a country with deep social divisions into an armed camp. It feels on some days like a civil war has begun. Your Court understands overruling, and Heller should be at the top of the list.

And then the Court gave us Dobbs. That case is not conservative. As Edmund Burke articulated the essence of conservatism, “If it is not necessary to change, it is necessary not to change.” There is no sense in which Roe v. Wade needed to be reversed. Indeed, several of your colleagues may have perjured themselves in their confirmation hearings by expressing fealty to stare decisis and saying the issue was “settled law.” While the Alito decision in Dobbs, probably leaked by him in draft form in order to hold wavering colleagues’ feet to the fire, wrote a treatise on overruling, it was not necessary and your Court knew that. Your concurrence said as much. Roe may have been doctrinally aggressive, but it produced national standards and balanced pro-life and pro-choice adherents in a rough way by introducing viability as the dividing line between what was permitted and what was not. Just look around at the havoc the Court has produced. Justice Alito found it constitutionally attractive to leave the matter to the (gerrymandered) states. But the point of constitutional rights is to protect certain things from the will of the majority. And you all laid an egg on that one. So second on the list would be to overrule Dobbs.

A further blow to the Court’s legitimacy was made in the Colorado LGBTQ case at the end of this Term. The decision favored a plaintiff who simply worried that a line of business she had not started might lead to a request by a gay couple who did not exist to do something she wanted not to do and that might lead to a mandate by the State of Colorado. But it was all made up. Nothing had happened. So the Court rendered an advisory opinion supporting an injunction in a fictitious situation where there was no case or controversy. That is not conservative, maybe not even constitutional.

Mr. Chief Justice, you have a big job on your hands. Some of your colleagues are vulnerable to zealotry. But the conservatives who shaped your life—both George Bushes and Bill Rehnquist—were good people. Disagreeable sometimes, mistaken sometimes, but good human beings. Follow their lead and fix this. Justice Owen Roberts saved the Court of the 1930s by changing his mind on Lochner, then a fairly recent decision, and the judicial fiat that case was imposing on the New Deal. He doused the energy behind court packing by doing so. Now is your time to avert disaster.

Yours truly,

David Schulte

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