Supreme Court: The Death of Justice Has Been Greatly Exaggerated | Opinion

We live in an age of exaggeration. It’s dominated by two fallacies of informal logic.
First, there’s the fallacy called “hasty generalization.” A politician takes a bribe—or two politicians take bribes— and we conclude that all politicians take bribes. One, or two— or several— public officials habitually lie, and we conclude from it that all politicians habitually lie. In short, we act on insufficient evidence and allow a couple of rotten apples to spoil the whole barrel.
Next, there’s the fallacy called “false equivalency.” One politician gets a free lunch from a lobbyist. Another politician receives a stack of gold bars from a foreign government. When someone points to the serious sin of the second one, the second responds: “What about that free lunch?” One politician lies about getting good grades in school. Another lies about who won the 2020 presidential election. “You lied about your grades, so you’re just as bad as I am,” says the second. In other words, false equivalency is about making a small thing the equal of a very big thing, leaving the impression that the two things are the same.
It happens with the courts too. Let’s take the hasty generalization problem. The United States Supreme Court has made some seriously bad decisions. Should we assume from this that all decisions of the Supreme Court are bad? Not if we look at the record.
In recent years, the Supreme Court has made some controversial rulings that in the opinion of many seriously get it wrong. For instance, we should be deeply concerned about what the Court unleashed in 2010 in Citizens United v. FECwhen the court rendered meaningful regulation of political contributions ineffective. Today, billionaires compete to buy themselves an American president. In 2008, in District of Columbia v. Heller, the court created an open season against laws designed to keep Americans safe amid a vast proliferation of firearms. More recent decisions on abortion, gerrymandering, and presidential immunity have also damaged the republic and created dangerous unforeseen consequences.
But it would be a hasty generalization to say the Supreme Court simply makes bad decisions all the time—or even right-wing decisions all the time. The court’s most recent term proves this. During it, the Supreme Court unanimously rejected forcing more workers to arbitrate their wage claims under federal law. It upheld firearm restrictions imposed under domestic violence orders. It restored a malicious prosecution claim against the police. It allowed a lawsuit against the federal government for damaging a consumer’s credit rating. It rejected a bankruptcy ruling shielding the owners of an opioid maker. It protected a criminal defendant from double jeopardy. It took a broad view of the statute of limitations in allowing a suit against the federal government. It rejected a challenge to FDA standards on abortion pills. It protected jury trial rights and allowed a lawsuit challenging a decision to place a litigant on a no-fly list. Even some of its most controversial decisions of the past term reflect common sense likely to be recognized in the future. The court held that letting federal agencies decide the scope of their own power under law abdicated judicial obligations, and it removed impossible burdens from cities trying to manage public spaces while caring for the homeless. In short, we can disagree strongly with some of the Supreme Court’s decisions, but to say the bad ones invalidate the rest is not only a hasty generalization, it’s a generalization refuted by the evidence.
Now let’s talk about false equivalencies. Justice Clarence Thomas has accepted lavish hospitality from friends with no direct business with the Supreme Court. New Jersey Democratic Senator Robert Menendez was convicted of accepting money from an Egyptian government looking to free up billions of dollars in American aid. Bribery on both counts? No. They aren’t equal. One is a bribe, and one appears to be mostly bad judgment.
Likewise, there is no comparison between Thomas accepting luxury vacations from friends and his sitting on cases about attempts to overthrow the 2020 election results when his wife was directly involved. The latter is a serious ethics breach, and the former might not be an ethics breach at all.
Yes, the Supreme Court has moved to the right, but that doesn’t mean it is always wrong. In this war of words we call contemporary politics, we should start admitting that we would be better served by more balance and less bluster. By constructively criticizing we can hope to heal divisions. By demonizing we can only expect to entrench them.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.