'A guarantee of anarchy': Law professor warns Supreme Court is a 'threat to the whole system'

In an grim column for The Atlantic, American University Law Professor Kimberly Wehle warns that the current Supreme Court with its 6-3 conservative majority has become "a threat" to the country as it runs roughshod over previous rulings while usurping the powers of the executive and legislative branch unchecked.

As Wehle explains, using recent rulings including the highly controversial overturning of Roe v Wade last year, the court, bolstered by three far-right justices appointed by former president Donald Trump, has taken on cases that expose "the right-wing majority’s appetite for asserting massive power under the auspices of judicial review."

Noting that Stanford Law School Professor Mark A. Lemley recently wrote that the court, as it stands now, is engaged in “a radical restructuring of American law across a range of fields and disciplines,” Wehle agreed, writing that what the court's conservative wing is doing runs, "...along two lines: substantive changes to the Constitution made under the guise of interpretation, and procedural power grabs executed despite traditions of deference. This has pushed our constitutional system dangerously off balance, with little opportunity for correction."

Case in point, she notes, is how the court ruled on the two hot topics of abortion, in its controversial Dobbs ruling, and guns.

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"What will constrain this Court? Not its constitutional philosophy, and not respect for precedent either. The decision in Dobbs was stunning not just because it gutted a constitutional right many counted on. It was also a snub to the vitality of judicial precedent itself, which has long operated as a check on the power of the Supreme Court," she wrote.

She then added that the court has given entirely inconsistent mixed messages when it comes to the regulation of guns.

"What about states? No, their power won’t constrain the Court either, despite the traditional conservative concern for states’ rights. To be sure, in Dobbs, the Court gave state legislatures the power to regulate abortion, but in Bruen, the same Court struck down a more-than-100-year-old New York State handgun-licensing law that regulated the carrying of concealed weapons in public," she wrote. "Dobbs enhanced state legislatures’ control over abortion. Bruen took it away over guns and public safety."

According to the law professor, "This is not how it is supposed to work," and the future looks grim because voters -- and too a lesser degree lawmakers -- are powerless to stop the legal carnage.

"A too-powerful, unaccountable Court is a threat to the entire system. Short of a constitutional amendment retracting their life tenure, or a filibuster-proof majority in the Senate willing to do controversial things such as restricting the Court’s jurisdiction or expanding the number of justices, there’s nothing the voting public can really do about this political power grab and its lasting impact on the lives of millions," she warned.

She then quoted Chief Justice Roger Taney who wrote in 1849: “If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order.”

You can read her whole dissection of the current court here.