Washington Post publishes amid questions about its legitimacy

The Supreme Court’s abortion decision was leaked before being issued, apparently in an effort by the liberal wing of the Court or their clerks to pressure the majority to reverse themselves. The Chief Justice in a rare press release condemned the leak, as did other conservative justices (no liberal justice did) and promised an investigation by law enforcement.

That was five months ago. If the investigation concluded that it’s impossible to identify the leaker, we’re entitled to see the report. If the investigation did successfully identify the leaker, we’re entitled to know who it was.

But we’ve heard crickets. The Chief apparently decided it was more important to just move on than to bring the matter to light. The leak damaged the Court badly enough, he may have concluded, and he doesn’t want to damage it even more by identifying the leaker – something that would cry out for an impeachment of a Supreme Court Justice.

If my theory is correct that the Chief is protecting a liberal Justice of the Court (I doubt he would go to such lengths to protect a mere clerk of a liberal Justice) then a storied institution charged with administering justice at the highest level in the land is consciously shirking its duty to administer justice in its own institution – in the interest, ironically, of preserving its status as an institution of justice.

With this on my mind, a headline in the Washington Post last week caught my eye. In their news pages – not their opinion pages – a story appeared under the headline “Supreme Court term begins amid questions about its legitimacy.”

Ah, I thought, WaPo is exploring this same story that is on my mind – that the Court is covering up the identity of the leaker to avoid a bloody judicial impeachment and Constitutional crisis.

I was wrong. The “legitimacy” issue in the WaPo story was that the Supreme Court had ruffled liberal feathers lately with decisions they don’t like. For example, the Court stated that abortion is not in the Constitution and therefore is not a matter for judges to decide, and that the power of administrative agencies is limited to what Congress delegated to the agency.

Democrats don’t like these decisions, both because they don’t like the particular results and because, more broadly, they don’t like shifting power back to the people. Democrats favor policies that are to the left of the people. They can’t enact such policies democratically because they would get voted out of office, and so they let unelected judges and administrative agency bureaucrats do their dirty work.

Leave it to the Democrats to charge that judges risk their legitimacy not by seizing judicial power, but by relinquishing it to the people and the people’s elected representatives.  

Put this in historical perspective. For two generations, up until a few years ago, the Court was issuing decisions that I didn’t like. For that, however, I never questioned whether the Court was legitimate. I simply questioned whether its decisions were correct.

That’s an important distinction. An incorrect decision still needs to be followed. An illegitimate decision, by implication, need not be. Roe v. Wade was an incorrect decision as a matter of Constitutional law, but conservatives never argued that it cast doubt on the legitimacy of the Supreme Court. They simply argued that it was incorrect, and so should be overturned. In the meantime, it was the criticized but undisputed law of the land.

The left plays by a different set of rules. People who disagree with them are not merely incorrect; they’re deemed illegitimate. If such people are students, they get booted out of school; if they’re parents at school board meetings, they get arrested and investigated by the FBI; if they’re professors, they get fired even if they’re tenured; if they’re opinion columnists like me, they get censored; if they’re speakers, they get shouted down; if they’re politicians, they get name-called “racists,” “deplorables,” and “semi-fascists.”

Nutjobs in the radical left hear these things and conclude, apparently as they are supposed to, that conservatives should be hunted down and eliminated – physically if necessary. Political violence is escalating. Most of it is against conservatives, and it’s rare to hear the left – or even mainstream Democrats – condemn it.

If the persons with whom the left disagrees happen to be Supreme Court Justices, their legitimacy, too, gets questioned – after their homes get marched upon and one of them is the target of an assassination attempt. 

As bad as physical violence and threats are, the deliberate undermining of the authority of the Supreme Court is worse. We are careening over the guardrails and into the day when the left simply announces – in the guise of news stories in prestige newspapers and not just opinion pieces – something like “People question whether Supreme Court rulings should be followed.”

The editors and reporters at WaPo have crossed a line. The line they’ve crossed is not expressing an opinion with which I disagree. They have a right to their opinions, and I’ll fight to preserve their right to express them – even though they conspicuously don’t fight to preserve my right to express mine and in fact do whatever they can to censor mine.

Where WaPo starts to cross the line is where they express their opinion not in their opinion pages where opinions belong, but in their news pages.

And then WaPo gets way over the line with the substance of their opinion-in-the-guise-of-news. The substance of their opinion, expressed as news, is that the Supreme Court is illegitimate simply because the Court is issuing decisions that WaPo doesn’t like.

So, remind me: Who’s the threat to democracy?

Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.