Commentary: Supreme Court’s naked power grab

By Roger Bowen

The U.S. Supreme Court’s unpopular decision overruling Roe v. Wade represents a teachable moment because it helps illustrate what German sociologist Max Weber wrote about the difference between power and authority.

Power, Weber said, is the certainty that a particular order will be obeyed. Authority, on the other hand, is the probability that a particular command will be obeyed. Power is naked, authority is clothed (and not always properly dressed for the occasion). Today the Supreme Court’s authority is in question because of its naked power grab, so much so that the Court’s very legitimacy may be in doubt. With five of the six justices favoring the overturning of Roe, all conservative Catholics, and the sixth an Episcopalian who was born a Catholic, theology has been transmogrified into the ruling ideology.

With nearly 60 percent of the American public in favor keeping the constitutional right of privacy and thus Roe in some form, only a third of all citizens wanted Roe overturned. With the Court’s injudicious decision to take away what had been a constitutional right of women for almost a half century, the percentage of Americans who now doubt the Court’s legitimacy has jumped to 61 percent. Prior to the decision to overturn Roe, public confidence in the Court was 70 percent. Add recent controversial Court decisions to stymie gun reform; permitting religious schools to feed at the public trough; and a ruling that limits the Environmental Protection Agency from battling climate change, something close to a perfect storm has tanked the Court’s approval ratings to historic lows.

A lack of public confidence in the Supreme Court helps explain the rapid and growing protests against the Court’s decisions, especially Roe. “Hands Off my Uterus,” reads one protest placard, while another calls for mandating vasectomies in those states where male lawmakers adopted stringent restrictions on abortion.

Arguably, the current solid conservative Catholic majority on the Court seems to believe that if only the American population accepts the end of abortion and thus the attendant right of privacy, and only if we allow climate change to run its course, and only if we have laws allowing virtually adult to carry a gun or purchase an assault rifle, then and only then will America ever be returned to an imagined, rosy past when real men, like Brett Kavanaugh, can allegedly assault a female student and then in his confirmation hearings be defended by one of the Senate’s senior Republicans.

I am certain that other atheists are no less angry at the American Catholic Taliban’s successful (so far) efforts to impose its religious and/or reactionary values on nonbelievers as well as on members of other religious faiths. Chutzpah, to be sure, arrogance, yes, intolerant of different values, no question, but ultimately it is hubris that describes the Court’s arrogant and simple-minded assumption that a conservative Catholic morality should be embraced by all Americans.

There is a secondary meaning of hubris that better depicts what the enemies to the Supreme Court Taliban must adopt: opposition to magisterial authority which might have a chance of rescuing America from the aggressive legislative power seized by the Catholic Taliban Court. Resistance by large numbers by atheists, Jews, Protestants, Muslims, etc., will likely further diminish the Court’s authority.

Take overturning abortion as an issue meriting criticism of the Court. Abortion pills can be had through the mail. Why wouldn’t Biden’s FDA send such pills for free to every pregnant woman who requests them? More creative, and more difficult, replicate the Woman’s March on Washington for all pregnant women who wish to attend, and then set up appointments for an abortion in D.C., where the procedure remains legal. More obvious, but potentially more effective, follow the Biden example of a Catholic who is pro-choice and recruit other pro-choice and equally high-profile Catholic representatives to cooperate in making TV ads. The thrust of the ad will be simple: it is wrong for Supreme Court conservative Catholics to impose their values on all Americans; let’s keep the wall that separates church and state.

Or pro-choice folks can simply wait for the mess that largely red states will face when expectant mothers die, suffer miscarriages, are detained by police to rat on the doctor who performed the procedure, and for the many unwanted children to grow up with few prospects amid a life of poverty and even abuse. Sadly, red state legislators seem not to care about a fetus once it is born.

Biden hit exactly the right key in his 8 July speech when he related the sad story of a 10-year-old Ohio girl who was raped and had to travel out of state for an abortion. More such tragedies will certainly occur.

America is in the midst of an uncivil cultural war. Fewer and fewer Americans hold “live and let live” values and instead must face a Supreme Court that effectively rules that we “live as the Court tells us how to live.” Trumpian authoritarianism has fed the populist-right wing in our nation to the unpleasant place America is for the moment. Resistance in the streets, in the media and at the ballot box will not end until the Taliban court stops legislating its narrow-minded religious values. The Court must be reminded that in a democracy, authority is respected. Naked power grabs are not.


Roger Bowen is a political scientist and lives in Prospect Harbor.

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