Imagine a fictional Supreme Court, circa 1970, in which the court's left-wing majority is sympathetic to the ways and means of violent leftist insurgents attacking government and academic institutions and seeking a cultural revolution and the overthrow of the republic.
Fictional Democratic political elites have called leftists imprisoned for violent crimes "patriots" and "political prisoners." In a ruling on the legality of Molotov co*cktails, the court majority concludes that there is nothing illegal about gasoline, bottles, rags or matches. So, hey, the co*cktails must be cool.
Recently Justice Clarence Thomas, in a 6-3 opinion for the court, declared the Bureau of Alcohol, Tobacco, Firearms and Explosives had exceeded its authority when it implemented a Trump administration ban on bump stocks, the devices that enable semi-automatic rifles to fire rounds at the accelerated pace of a machine gun. Machine guns have been illegal in the U.S. since 1934.
Thomas resorted to his dictionary to explain why a ban on machine guns does not apply to a device that renders copycat machine guns.
The dissent, by Justice Sonia Sotomayor, jumped through no intellectual hoops in concluding that a ban on all machine guns would logically encompass a device that produces the equivalent of a machine gun, with a capacity to fire more than 400 rounds per minute.
Why do these judges keep making it easier to intimidate, terrorize, kill?
Justice Samuel Alito, in a concurring opinion, offered an answer: "Now that the situation is clear," he wrote, "Congress can act."
What a kidder the angry old MAGA judge is. "Alito knows that it's very unlikely that Congress is going to react and pass legislation to shore up this ban," said UCLA law professor Adam Winkler, an expert on gun law.
Congress did not act after Oct. 1, 2017, when a shooter equipped with an arsenal of semi-automatic rifles and bump stocks opened fire from the 32nd floor of the Mandalay Bay Hotel in Las Vegas. He murdered 58 people attending a concert below. More than 800 were injured by gunshots or the resulting panic.
Whose rights were infringed by a ban on guns that fire like machine guns? The Greater American Bump-Stock community? The universe of people who feel a desperate need to fire a machine gun copycat and the universe of people who should be kept far away from such firepower is one and the same.
Likewise, the conduct of this Supreme Court is increasingly indistinguishable from the deepening radicalism of Republican politics. Chief Justice John Roberts' court has been using law to destabilize American society as surely as the Republican Party has been using lies to destabilize American elections. Roe v. Wade was "settled law" until suddenly it wasn't, and now a nonviable fetus in Texas has rights that trump those of a living woman.
The court's rapid expansion of gun rights has accompanied not only the GOP's steep democratic decline, but the Republican base's growing affinity for violence. In a survey for PRRI, one-third of Republicans said that they believe "true American patriots" may have to resort to violence to "save" the country.
Justice Antonin Scalia's 2008 Heller decision, which created an individual right to firearm possession, was a brash offensive, with the great champion of textualism effectively deleting the words "well-regulated militia" from the Constitution.
A few months after Heller, the GOP began its descent into birtherism. Faced with the option of becoming more centrist to gain votes or more extreme and less democratic to resist change, Republicans opted for the latter.
The Supreme Court, in turn, began to orient the court toward the claims of the Republican base, including dismantling restraints on gun violence.
Thomas' landmark 2022 Bruen ruling decreed that all Americans must submit to the dominance of right-wing gun culture and welcome untrained gun slingers bearing unregistered firearms into their neighborhoods.
Bruen, which Thomas claimed was grounded in history and tradition, caused an uproar among historians who found, once again, that the text of American civic life had been badly mangled. Thomas' ruling, however, was a roadmap for partisans, on and off the court, who wish to superimpose Confederate America on pluralistic America.
The GOP's rapidly degenerating political culture, in which corruption and criminality are openly celebrated, has its echo in the court as well. Three of the six Republican justices were appointed by a president whose lawlessness was on vivid display long before they accepted his nominations. Two others live in visibly pro-insurrection households, although Thomas' defiance with which he has met revelations that he pocketed millions in goods and services puts him in a class of one.
"These types of decisions enable, in many ways, authoritarian rule in the name of individual rights," said Alexandra Filindra, a political scientist at the University of Illinois Chicago. "The overall project of expanding individual rights in the name of religion, in the name of capitalism, essentially is creating a society that is more and more unequal, and where people who don't believe in democracy, and view democracy as an obstacle, have more and more power."
