How to Evade The Supreme Court

                                                     By David K. Shipler 

              With radical regressives on the Supreme Court trying to drag the country back to the 1700s, the case is being made for ignoring, defying, or deftly evading rulings that clash with the values of modern society. These include abortion, guns, government regulation, voting rights, religion, and affirmative action.

Both legal and illegal approaches are on the horizon. Already, to parry the extremist justices, New York has taken advantage of loopholes in Justice Clarence Thomas’s sloppily written gun-rights opinion. The Democratic governor and legislative majority enacted into law restrictions on concealed-carry licenses that the Court’s majority surely hadn’t imagined, and a list of “sensitive places” where guns would still be prohibited—a much longer list than the Court presumably envisioned.

Similar efforts are underway in progressively-dominated state legislatures to enshrine abortion rights in statutes or amendments to state constitutions following the Supreme Court’s ruling (Dobbs v. Jackson Women’s Health Organization) that overturned Roe v. Wade and magically erased the right to abortion that the Court had earlier found existed implicitly in the United States Constitution.

The game now is going to be to outwit the justices, legally or otherwise. Some methods likely to be tried are in plain view, some under the radar.

 In the blatant category, nearly ninety elected district attorneys across the country announced in a joint statement that they would not prosecute violations of anti-abortion laws in their states. More unspoken refusals can be expected from prosecutors whose offices are already overworked with street crime and don’t want the cruel optics of jailing women and their doctors.

Civil disobedience by clinics willing to risk penalties to oppose the Court might be attempted if brave souls exist. And in some other areas of the law, surreptitious defiance or passive resistance is probable.

For example, after the Supreme Court strikes down race-based affirmative action, as it is certain to do next term in a case involving Harvard University, admissions officers will have little trouble continuing to give preference to minorities in the cloistered discussions that occur when picking the next freshman classes.

Those choices are pretty subjective right now. Grades and test scores have never been the whole story, especially at elite schools, which also look for the unquantifiable attributes of social commitment, community leadership, perceptive self-awareness, and personal success in rising above hardship, among other characteristics. A former Ivy League admissions director once told me that his department valued students who had worked for change, albeit just in their limited circles of school and neighborhood. Absent such qualities, even some class valedictorians with sparkling SAT scores were being rejected.

Since colleges are moving away from requiring or considering SATs, they’ll be able to disguise their racial preferences more easily, if they wish, to create the diverse classes many schools now see as benefitting not only students of color but also whites, who are exposed to the variegated features of the real world they will enter after graduation. University lawyers won’t approve, noted a friend in the legal profession, since they don’t want their clients to get sued. But that risk might not deter the entire generation of admissions officers who have worked hard to recruit bright kids from poor and minority backgrounds. (The Court could leave economic affirmative action intact, allowing colleges to give preference to low-income applicants without considering race.)

Both sides of the progressive-regressive (Democratic-Republican) divide can play this game, of course, and the ultimate loser is the rule of law. When the American Bar Association established the World Justice Project in 2006, it made its main task an annual Rule of Law Index, measuring each country’s health by an array of factors in the legal arena.  Last year, the United States was ranked only 27^th among the world’s nations, behind South Korea. (Denmark was No. 1.) This year, after Republican officials have defied subpoenas and the Supreme Court has discarded precedents to make the law less predictable, the American rank seems likely to drop.

The Court has been defied before. After unanimously ordering public schools desegregated in its 1954 decision in Brown v. Board of Education, the justices—who have no battalions at their disposal--could do nothing against the Southern districts that simply refused to allow Blacks and whites to mix. Some districts evaded the ruling by opening private schools instead.

After the Court found school prayer unconstitutional in 1962 (Engel v. Vitale), public schools in parts of the country ignored the ruling and simply continued with prayers and Bible readings in their morning routines. In fact, just a few years ago, I heard a parent in a small town complain that applicants for teaching jobs were being asked about their religious denominations.

Police themselves are often deft violators of Supreme Court rulings. Cops sometimes ignore the Fifth Amendment’s guarantee against self-incrimination by putting detainees in coercive settings to elicit confessions—whether true or false. (The confession can be suppressed as evidence by the trial judge, but the Supreme Court just ruled that police cannot be sued for failing to give the Miranda warning that a detainee has the right to remain silent.)

The body of judicial opinions on other civil liberties looks less sacrosanct on dark streets than in bright courtrooms. During deep nights in the nation’s capital, I watched a police unit I traveled with for my book, The Rights of the People, overstep the Supreme Court’s limits on warrantless searches, violating the Fourth Amendment as cops in Black neighborhoods frisked pedestrians without reasonable suspicion. They were searching for guns. I suspect that police in lots of places will continue to do so—mostly out of sight.

The Court’s recent gun decision, in New York State Rifle & Pistol Association, Inc. v. Bruen, extends its interpretation of the Second Amendment’s right to bear arms to public places, striking down a century-old New York law that required applicants for a handgun license to demonstrate a security need. But in acknowledging that “sensitive places” could be off-limits to guns, the Thomas opinion, signed by six justices, left a path for Democratic legislators in New York to act.

So the legislature passed, and the governor signed, a new law that listed among “sensitive places” airports, courthouses, daycare facilities, playgrounds and other places where children gather, education facilities, domestic violence and homeless shelters, entertainment venues, bars and restaurants where alcohol is served, government buildings, medical facilities, houses of worship, libraries, polling places, demonstrations and rallies, mass transit including subways and buses—and Times Square! Guns can be taken onto private property only if the owner posts a sign saying that weapons are allowed.

 In addition, the statute requires applicants to undergo extensive firearms training and to open their social media to inspection by licensing officials. Whether the law will survive court challenges is a question, but it got smiles from gun-control advocates.

Indeed, it’s tempting for each side of the political divide to cheer its canny escapes from judicial decisions it deems obnoxious. But the Court has only the good will of the people and institutions to enforce its rulings; it relies on popular acquiescence to its wisdom, decency, and fairness. That regard is gone now, probably for a generation, given the years left in the expected lives of the five or six radical regressives whose voices cannot be stilled but only evaded where feasible.

This is not a good place for the country to be, especially at a moment of democratic fragility. Disrespect for the Supreme Court undermines the rule of law, which is an essential ingredient of a stable, free society.