Laws are becoming matters not of criminal codes but of public opinion
Everywhere you look, traditional law enforcement is disintegrating. Vigilante groups are stepping in to fill what they see as a void in enforcement. Technology and subterfuge are taking the place of traditional gumshoes. And perhaps most disturbingly, the public and even governments are starting to pick and choose between the laws they view as worthwhile and the ones they don’t.
Defunding the police may turn out to be the least of our troubles, if the laws themselves become not matters of criminal codes but of public opinion.
The greatest and most visible example may be the treatment of the 2020 election, where vast swaths of the public have chosen to ignore the legal results. That led to the Jan. 6 insurrection, in which a few thousand oddballs and misfits felt they could take American democracy into their own hands.
But the story didn’t end there. When it came to hunting down the culprits, much of the detective work that followed was performed not by police, but by online groups such as Netherlands-based Bellingcat, which mined video for facial identification.
Similarly, a grass-roots group in Ohio has set traps for online predators, luring them into the open and turning their resulting videos over to the police. The work seems virtuous, but such tactics are ripe for abuse.
Project Veritas has used deception to infiltrate left-leaning groups in hopes of recording Democrats saying or doing uncompromising things. If these things don’t materialize, Project Veritas is happy to make them up through selective clips and deceitful editing.
In Utah, an animal rights group angry with the way Smithfield Foods was treating hogs, snuck into a plant, took video and stole two sickly pigs. A jury refused to find them guilty.
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But it’s not just private citizens who are deciding what the law should be. Following the overturning of Roe v. Wade, some state attorneys general signaled that they would simply refuse to enforce draconian abortion law.
When New York passed a new gun law delineating where weapons could not be carried, upstate sheriffs openly announced they would not be enforcing a law with which they disagreed.
It is all too easy to see where this is going, and it focuses on what has been called the “legitimacy crisis” of the U.S. Supreme Court.
The Supreme Court has no weapons, no enforcement arm nor any mechanism for ensuring that the country follows its rulings. We do follow its rulings because we believe it to be legitimately independent, a blindfolded woman with a set of scales.
This has always been an article of faith, akin to St. Peter walking on the water, and the foundations have been rattled before: Andrew Jackson’s beliefs that he should not be bound by judicial fiat; FDR’s saber rattling when the court failed to go along with the New Deal; the Warren Court’s stretching of the machinations of the Constitution to create rights and protections that Madison, technically, didn’t think to jot down.
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But through it all, courts were fiercely nonpartisan, refusing to enter into what were deemed political disputes. A court could be liberal or conservative, but it could not be Democrat or Republican.
The politicization of the court may have had many opening shots, but it certainly wasn’t helped by Democrats’ rejection of Reagan nominee Robert Bork — whose declaration that a seat on the court would be an “intellectual feast” was interpreted as finding clever ways to deprive citizens of their rights.
But the first overtly political act occurred in 2000 when the court stopped the Florida recount and awarded the presidency to George W. Bush. It seems safe to say that no other court, ever in our history, would have committed such an overtly partisan act.
Because of that, no other court would have felt the need to go on the chicken dinner circuit to claim that its partisan acts are not really partisan. Amy Barrett’s plaintive claim the court is “not a bunch of political hacks” sounds much like GOP Senate candidate Christine O’Donnell’s notorious “I am not a witch.” An admission by way of denial.
Instead of carefully construed legal frameworks, this court makes a policy decision first and foremost, then backfills with nonsensical reasoning. So basically you wind up with culture-war lobbyists masquerading in black robes.
Considering the law-is-optional path we are already treading, is it hard to imagine that states will begin to ignore the Supreme Court altogether? That California, for example, might brush aside a court order to stop mandating cleaner cars? That Texas might not stop circumventing immigration law even if the court were to tell it to? That a president might continue to enforce an executive order the court says is illegal?
The miles of rope this court is dispensing to hang others may one day end up hanging itself.
Tim Rowland is a Herald-Mail columnist.
This article originally appeared on The Herald-Mail: On our law-is-optional path, who will listen to the Supreme Court?
