Losing My Faith

Faith isn’t only important for religions that emphasize faith over works.

Living emotionally healthy lives also involves having faith in our families and friends, and in our social institutions. Faith in the trustworthiness of government is critically important to the maintenance of a democratic polity–and after many years, I’ve lost my (undoubtedly naive) faith in part of America’s government–the Supreme Court. 

It was bad enough watching Brett Kavanaugh engage in his very un-judicial hysterical rant during his confirmation. It was infuriating when Mitch McConnell publicly displayed the game-playing that goes into elevating nominees to the highest court in the land. And of course, the almost-daily revelations about Justice Thomas are enough to make an ethical lawyer gag.

The rank dishonesty of today’s Court–on display when Alito’s theocratic impulses won majorities in Hobby Lobby and Dobbs–are far from the only evidence that the Court is not the collection of thoughtful, dispassionate legal analysts I once fondly believed.

A recent book by Stephen Vladeck focuses on the Court’s increased use of the shadow docket. Vladeck shows how the conservative justices ignored decades-old norms by using that docket, which doesn’t require briefing or consideration of the merits, to issue a series of shadowy unsigned and unexplained emergency orders.

The Shadow Docket was created as a mechanism to deal with issues requiring an immediate ruling on procedural matters, such as scheduling, or situations requiring maintenance of the status quo until the case could be considered on the merits, to avoid irreparable harm to a litigant.

Vladeck’s book describes the largely unnoticed shift towards what he calls “furtive justice.”  “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues that rightwing justices have “abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.”

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.

It shouldn’t surprise us that the current Court is experiencing a crisis of legitimacy, but like many lawyers, I stubbornly believed that the Court’s dysfunctions were of relatively recent vintage. (Thanks, McConnell!)

Then I read Erwin Chemerinsky’s 2015 book: The Case Against the Supreme Court.

Chemerinsky is one of my legal heroes. He’s an American legal scholar widely respected for his studies of constitutional law and federal civil procedure. Since 2017, he’s been the dean of the UC Berkeley School of Law. (I was once on a panel with him, and he was erudite and self-effacing and altogether charming.)

The book is a scathing critique of the Supreme Court for failing–throughout its history– to carry out its most important responsibilities at critical moments. According to Chemerinsky, the two “preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.” 

In the book, Chemerinsky goes through the Court’s jurisprudential history, identifying case after case in which the Court failed to take a stand for constitutional rights and principles. He gives example after example of the Court’s “decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis.” “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect.”

Chemerinsky acknowledges that the Court has occasionally performed as we would hope, in cases like Brown v. Board of Education, but even the Warren Court–a high-water Court in the opinion of most legal scholars– doesn’t escape reproof. (He details in one chapter how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.”)

Chemerinsky absolutely eviscerates the Roberts Court–and that was in 2015, before Gorsuch, Kavanaugh and Barrett– enumerating the many ways in which that Court continues to favor the powerful over citizens in a wide range of areas from generic drug manufacturers to voting rights.

The book does provide a laundry list of reforms that might ameliorate the deficiencies: term limits for the Justices, several changes to the way the Court communicates, and –importantly–rigid ethical requirements and recusal procedures. 

 Vladeck and Chemerinsky–and the Roberts Court–have disabused me of my prior, naive faith in the Court. The domination of Congress by the GOP’s version of the Keystone Kops had previously removed any remaining confidence or faith in that body.

That leaves one leg of a three-legged stool……  


  1. There has been little reason to place our faith in the lower courts at all levels. Little justice in the justice system which, due to inability or disinterest to resolve issues early on and to know when an issue such as religion, health decisions and gender, should not be in the judicial system. The Supreme Court, no longer looked to as the final decision to right wrongs, is primarily a pitiful example of justice with decisions effecting the entire nation rather than a case by case outcome. Of course our government at local, state and federal levels provide the justices to sit on the highest court in the land when they cannot serve the electors who put them in office.

    I must admit, after watching MSNBC this morning, that I sincerely have faith in McCarthy, Durham and Comer to continue tripping on their wee-wees as they stumble through their efforts to support Trump and his Freedom Caucus House rule at this time.

  2. The problem is that much of the court holds that the constitution comes a distant second to their molding of the USA into the theocratic nation they believe it should be. They don’t answer to the founding principles of your nation, nor the people (god forbid!); they believe they are answering to a higher power. And that’s it. Other laws, other peoples’ rights, are meaningless to them.

  3. To your point about favoring the rich and powerful: How can we forget the Rehnquist court ruling in Bush v. Gore? Or was it Gore v. Bush? The most salient item you left out of this sad recounting of the court’s true blindness is that ALL of the Justices mentioned as “ruling” or acting badly are Republican appointees. You don’t suppose the Federalist Society has anything to do with the rot that are these ideological bastards, do you?

    Yes. The Republican-controlled House and Republican-appointed Justices on the Supreme Court. What could possibly go wrong? Answer: EVERYTHING.

  4. For a dramatic account of SCOTUS corruption in the Gilded Age, see “The Prosecution of Judge Waite” on YouTube.

  5. You are not alone this morning, Sheila. I too have lost faith in the Supreme Court noting most recently the Court’s shift away from decision making to the “great stall”. That stall has come about due, no doubt, to the outrage over their crazy reasoned decision about abortion and the ethical revelations about not just Thomas, but the rest of the black robed flock too. By putting off decisions about the abortion pill, the Illinois gun law, and other major cases they have forestalled pushing the masses into rebellion until after the next major election. No courage of their convictions there.
    And one question for my fellow readers of this blog. Just where does one go when one has lost all faith in one’s government?

  6. How can we have faith in any of our institutions. Not only do we s thoroughly corrupt Supreme Court, we have legislative bodies breaking a trust with taxpayers by funneling money away from services, like education, for the public good and into private hands. And how can we trust that our democratic principles will prevail at the executive branch when there is no guarantee the candidate either most votes will actually hold the office? I’ve lost faith that we can even call ourselves a democracy with gerrymandering, book banning, the state’s intrusions in personal health and the gross influence of money in our elections at all levels.

  7. As someone once said, “Once you have the courts you can do anything you want.” That is what we are seeing play out now in our current situation.

  8. The oligarchy has wrapped up SCOTUS for decades with biased and corrupt judges. Everybody gets to their relationship recently with the Clarence Thomas issues. But, no, Theresa, there are no “masses in rebellion.”

    Vern knows the Federalist Society ‘grooms’ judges for the oligarchy. If they need to bring a lower court decision up through the justice system to SCOTUS, the oligarchs have greased the path for a positive outcome.

    When the UK or France pass unfavorable rulings, the people hit the streets, and government makeup is changed. The G7 finds it harder to follow the US because wars and sanctions aren’t favored in their countries or ours. However, Europeans march while US citizens are too busy with high-tech gadgets. When the media chants about the “great democracies gathered at the G7, it’s laughable.

    If all the media were doing its job as a free press, the people would collectively know just how screwed they are, but when the press serves the oligarchy, we have bad outcomes that don’t align with the people’s interests.

    To change the trajectory, we need more muckrakers holding yellow journalists accountable and more people protesting against taxation without representation in the street.

  9. The so-called power and prestige that comes with joining the SCOTUS can corrupt. And it is playing out now (at least in the near term) before our very eyes. Without a true moral compass, one most assuredly loses their way in any way of life.
    For those of us who have lost faith in this venerable institution, we can only pray that an “epiphany” of sorts will eventually occur with regard to some members of this court to hold in high esteem the preservation of our democracy.

  10. Todd; I pulled up that report and you are right, the FBI investigation certainly was treated differently than their investigation of Hillary…but NOT the way you view it. Trump was aided and abetted, Hillary was repeatedly accused and disparaged regarding her use of one-server and those purportedly lost E-mails. FBI Comey’s last minute reprisal of those issues of disproved accusations was done to aid Trump who quickly fired Comey on air due to the failure of the action. That is all recent history which even you should be able to remember if you would only unblock your mind from equating all Democrats with the current Republicans.

  11. Durham’s report merely rehashed criticism of some mistakes the FBI made, mistakes that were already reported by the Inspector General. His work resulted in charges against three individuals, two of whom were acquitted by a federal jury, including charges based on the dossier. He was 1 for 3 on securing convictions, nabbing only an attorney for altering an email to get a warrant. What was Mueller…like 30 for30 in prosecutions? He didn’t lose a single one.

    Durham’s report admits there was enough evidence of Trump Russia ties to open up a preliminary investigation. He just didn’t think (his opinion) there was enough to open up a full blown investigation. What did he think would have happened to that preliminary investigation once the Trump ties were more fully found out? It would have been turned into a full investigation.

    Let’s not forget the Senate Intelligence Committee, at the time with a Republican chair and Republican majority, issued a report detailing the Trump campaign welcoming the help of Russia to win the 2016 campaign. And Mueller wrote about that extensively in his report.

    Durham proved himself nothing more than a political hack. HIs report wasn’t about detailing the truth. It was a job application should Trump get a second term.

  12. This country’s federal government was created as an Oligarchy that favored the wealthy, with many who were slave owners. The word Democracy sounds nice, but we have never experienced a true democracy. Chief Justice Roberts’ refusal to address Clarence Thomas’ belief that ethical guidelines don’t apply to him is beyond reproach.

    Erwin Chemerinsky’s more recently published (1922) book is: Worse Than Nothing: The Dangerous Fallacy of Originalism. Originalism has been abused by powerful judges to force their own personal beliefs onto winners and losers in the courts they preside in. Leonard Leo of the Federalist Society brags about how he has hand-picked the most conservative justices on the supreme court, along with his power over Congress to get them confirmed.

    If anyone is interested, the beginning and progression of power of The Federalist Society is explained in the links cited below. The first website contains info written in 1982, but one might think it had been more recently written. It discusses the main funders back then and what those wealthy funders wanted – basically a judicial system that would favor and protect their corporations and industries.




  13. John, who isn’t a “political hack” in Washington?

    John Podesta sure is a political hack, and he has brotherly ties to the Washington Capitol PD, where Seth Rich’s botched burglary/murder took place. Amazing how that happened!

    Too bad Mueller didn’t focus on the actual crimes committed in 2016. His investigation was an elaborate coverup. Plain and simple. The named “Russian agents” didn’t exist anywhere.

    Still can’t figure out why Rupert Murdoch stroked a 7-figure check to the Rich family. Let’s subpoena Tulsi Gabbard and Julian Assange! We don’t want the truth.

    The real crimes, including murder, are still in play should someone with a real backbone stands up.

    Muckrakers with access to whistleblowers and independent investigators could tell the real story within months. If we had these two components, politicians and judges would all resign.

  14. Nancy: I also have–and have read–“Worse than Nothing.” It’s entirely persuasive, but of course, it confirms my prior beliefs…..

  15. For a long time I didn’t support adding justices. That has changed. As I look at a historical perspective, I think the number of justices should be the same as the number of circuits. When FDR tried and failed to increase the number,there were 9. Today, there are 13. Let’s have 13 justices.

  16. Since SCOTUS has always skewed conservative, that begs the question, why has our society consistently become more liberal? Could it be because the three-legged stool of government sits on the floor of public opinion? Voting is, of course, terribly important, but it is not the only way public opinion influences our government. Just something to think about.

  17. Faith without works is useless. Can You discern What a person has faith in by their works? Absolutely. Works can say something opposite of an individual’s claimed faith. For instance, after a mass shooting, they open up their comments expressing their “thoughts and prayers” for the victims. They talk about the evil of the shooters, but do nothing to prevent continued slaughter! So no works to back up their supposed faith!

    Mental health is a huge issue concerning owning weapons. When a politician claims to have faith in the system, but closes mental health facilities, allows individuals to purchase and carry weapons IE guns, without background checks for mental instability, or, without a license, their works point to what They truly have faith in! Their works actually disavow their claimed faith!

    The constant call for “thoughts and prayers,” without actually changing the dynamics of the cause behind constantly expressing those “thoughts and prayers,” is hypocritical and very telling!

    Maybe there should be more exposure concerning those words expressing Pius Faith but are devoid of any sort of works!

    Of what benefit is it if a certain one says he has faith but does not have works, that faith cannot save him can it? James 2: 14!!!!

    Hebrews 11:1 explains what faith should be; “Faith is the assured expectation of things hoped for, The evident expectation of realities though not beheld!”

    So having faith in something is backed up by realities of that faith from past expressions/actions. In other words, that faith led to certain works. So claimed faith in a particular issue that does not correlate with its claimed works, is useless! You can’t change works by having or claiming faith in a particular action contrary to proven direction from previous actions. But you can claim hypocrisy or shout hypocrisy, expose hypocrisy, beat that hypocrisy like a dead horse! Exposed under their nose. Use that hypocritical faith like a bludgeon, don’t let up, The longer the pedal stays to the metal, the more hypocrisy is exposed.

  18. John S.-The pro-birth crowd who crow about their Faith, are doing what you claim is hypocritical. They are doing what their “Faith” dictates, or so they would tell you, ignoring the terrible harms their actions create.

  19. My high school civics teacher (1961) weeps from her grave. She inspired informed faith in our Constitution and our Democratic Republic. I join her in her sorrow. This is a sobering post. Thank you, Sheila.

  20. The problem in the US is also our faith in Faith. There is little evidence of anything other than a cult mentality as a byproduct of human evolution, and this is what we call faith. It nothing more than the denial of truth in favor of a preferred false reality.

    Re: the Supreme Court and the Federalist Society, it is a Catholic conspiracy. This is not tinfoil hat stuff and has been thoroughly investigated by journalists not afraid to speak the truth. Whose tribe is going to run the country? The most cynical cult, of course. Faith, indeed.

  21. I hate to tell you this, Sheila, but the slow slide started long ago. Republicans were annoyed with how “liberal” Earl Warren had become and Democrats were annoyed with how “conservative” Byron White had become. To combat this, ideological purity became a Republican requirement for Justices beginning with Nixon. Some were great jurists, but it wasn’t a requirement.

    The Democrats, in their usual wimpy fashion, responded by trying to choose “acceptable” candidates, lest that appoint another William O. Douglas.

    According to retired Judge Richard Posner, every Justice appointed from Nixon through Obama was more conservative that the one they replaced (I don’t know his criteria though).
    It has been down hill since then.

  22. Chief Justice Roberts is weak. Roberts is also compromised, thus he does nothing to address the corruption of the republican members of the “Supreme” Court. The current SCOTUS is a travesty, and I too, have lost faith in the highest court in the land.

    The remedies are as a few of you have already stated: term limits, and a robust, strictly enforced code of ethics and recusal. Also, during the nomination hearings, the potential judges must answer yes or no rather than display evasive posturing on questions about how they would rule on significant issues. This way, we can hold them to their word and not give them a “pass.”

  23. I agree with Peggy – add more justices. Although it’s been awhile, it has been done before.

  24. Adding more justices isn’t the answer. This will only result in more Republican vetted justices. If it were not for the aquescence and ineptitude of the Democratic Party establishment,the idea of changing the number of justices wouldn’t be a subject for discussion.

    If the country is becoming more liberal, why is the Democratic Party continually moving to the right? As George Carlin says about our two Party system; We have the Republican Party and Republican-light.

  25. I normally respect what you post. Today, I think you were a little sloppy. Language is important… especially as some continue to try to change the accepted meanings of words.
    “Faith” is belief without evidence, so it is not the correct word in this case. What you appear to be writing about is losing “trust”. There is nothing positive about having faith.

  26. Sad day indeed when both parties do not respect Americans and our sovereignty as a country. Our government systems playing Big Brother members of Congress and the White House condemning voters for their own lack of accountability. And then finding evidence of the FBI DOJ not carrying out the laws. Lack of knowledge by members of government relying on the Supreme Court to compensate for no laws created by Congress. No wonder I am an independent! There are too many irresponsible people in charge. Concerned good people will not run for office. What a zoo in Washington DC

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