The Supreme Court has positioned itself as the protector of the Constitution since the days of Chief Justice John Marshall.
In the seminal 1803 case of Marbury v. Madison, Marshall wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is. … [And] the Constitution is superior to any ordinary act of the legislature.” From that moment forward, every American institution has deferred both to the court’s interpretation of the Constitution and to the Constitution’s applicability to specific cases.
That deference has come from presidents, legislators, states, businesses, organizations, advocacy groups, and individuals convinced that the court’s interpretation was wrong. It has come from judges and justices convinced that the court’s majority took the Constitution to places it was never intended to go.
This deference to Supreme Court rulings about the meaning and applicability of the Constitution has provided a pillar of stability to the rule of law throughout the history of the United States.
The Court Must Decide
Right now, the undeclared second American civil war is reaching a critical juncture. The entire constitutional structure is at stake—meaning that the entire future of America is on the line. Nearly all American institutions have already chosen a side. The Supreme Court is the exception. Because we have reached a juncture at which even inaction is decisive, the court can’t simply opt out. One way or another, the court must review the evidence to decide which part of America stands with the Constitution.It’s almost impossible to overstate the fundamentals of this conflict. The two major political parties are accusing each other of attempting to undermine the constitutional structure, disenfranchise the American people, and install an illegitimate American president. The claims are fundamentally incompatible.
Either America held a free and fair election with record voter turnout favoring Joe Biden, and the outgoing president is promulgating dangerous and unfounded conspiracy theories in an attempt to undermine the American future; or, numerous important American institutions are at least complicit in a massive fraud, a sham election, a victory stolen from Donald Trump, a coup attempt, and an effort to transform the United States from a constitutional republic into some form of paternalistic progressive aristocracy.
Beyond the narrow question of who emerges as president, American culture and society will increasingly conform to the morals and beliefs of the side that prevails. So, too, will those who record history and those who determine criminality. Important people in prominent leadership positions will fall from grace. Some may face charges as serious as treason. Plea agreements may cascade through the ranks of those whose side falls from power.
The Supreme Court can’t opt out of this dispute. At such a juncture, even inaction is a decision. Though any actual rulings it issues will focus on specific facts and narrow points of constitutional law, the effect of those rulings will be to enshrine one worldview and degrade the other. Given where the country stands today, such an outcome is unavoidable.
Each justice must thus decide which story is true (or at the very least, pointing in the generally correct direction), what our form of government will be moving forward, and what role the court will play in that future.
The cost of getting it wrong is incalculable. A ruling favoring lies over truth will represent the court’s abdication of its role as defender of the Constitution and the constitutional structure. It will mark the end of the United States as a constitutional republic.
The court will rule within a matter of weeks. When it does, America’s second civil war will move into its next phase with one side empowered and the other crippled.
After the court’s decision becomes clear, every individual American must decide where he or she fits into that American future.
Like many Americans, I believe that one worldview reflects truth, decency, freedom, public welfare, and the constitutional republic the United States was founded to be. The other reflects lies, cruelty, servitude, divisiveness, and elitist authoritarianism. Yet my personal beliefs—like those of most Americans—are of little moment. The beliefs of nine justices and the institution they represent are critical.
The Supreme Court is the last American institution standing. Whether it announces a formal decision or not, it’s making one. The entire American future is at stake.
