Arrogance Is Never Having To Say “Sorry”

Linda Greenhouse is one of my favorite Supreme Court reporters, and she recently published a commentary in the New York Times, titled “Is There Any Twinge Of Regret Among Anti-Abortion Justices?”

Marking the one-year anniversary of the decision in Dobbs, Greenhouse noted that  the decision has propelled a crisis in reproductive health care that is “acute and growing,” leading to alarming consequences.

Greenhouse first shared the history of another case that had generated “alarming consequences”–consequences that, in that case, led to a speedy reversal.

Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-age children from engaging in the practice. In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech.

“Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette. 

The first decision, in Minersville School District v. Gobitis, had unleashed a wave of violence against Jehovah’s Witnesses: in the wake of a ruling that many saw as evidence that Witnesses were anti-American, mobs attacked individuals and destroyed their churches. Some 2,000 Witness children were thrown out of school, and some of their parents were criminally prosecuted.

Greenhouse then  enumerated some of the dire medical consequences of Dobbs, and then asked her question:

A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

As she points out, the immense harm to women couldn’t have come as a surprise. “Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.”

Greenhouse then proceeds to answer her own question, saying she doesn’t think the Dobbs Justices are sorry. As she notes, a difference between Barnette and Dobbs is that the justices who changed their minds after Gobitis were motivated by facts, not by ideology.  These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..

Although Greenhouse doesn’t explore the psyches of the anti-Roe justices, Jesse Wegman took a long, hard look at the author of the convoluted decision in Dobbs,  focusing on the recent disclosures of Alito’s unethical behaviors. Wegman’s analysis of Alito’s personality and character–especially his arrogance– are equally applicable to other examples of the Justice’s disdain for settled constitutional analysis.

Wegman points to Alito’s decision to “devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published”–an essay that “epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all.

Wegman notes that one reason public trust in the court is in free fall is demonstrated by Justice Alito’s “smug, defensive reaction” to criticism.

The moral of this story is not that the highest court in the land should issue decisions consistent with public opinion. As legal scholars often note, the Bill of Rights is counter-majoritarian. The moral is that –in the absence of compelling evidence (a la Barnette)–Justices should respect precedent, and resist confusing their idiosyncratic, psuedo-religious commitments with constitutional principles.

Tune in tomorrow for the second lesson– the need for Supreme Court reforms.


  1. Sheila: “…These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..”

    With SCOTUS appointments for life; we are looking at situations such as the British monarchy; while the justices were not born to the court, they must remove themselves from their lifetime appointments or be impeached, which will never happen. The Supreme Court is not required to “say they are sorry” and will not “abdicate” their appointments to rule over this nation’s final decisions in all things judicial. They are setting our future in stone unless impeached by Congress which would result in being put before themselves for the final decision. Comparisons to Hitler have always been part of the description of Trump’s miss-administration of all branches of our government; at this point he has no reason to remove himself from his strong presidential campaign. We can look at the results of the British abdication and the world can be thankful Edward was so “whipped” that he gave up his rightful place in history and made his decision to abdicate the throne, knowing what he moved on to with his bride. We have to find our own way to rid Congress and SCOTUS of religious dictatorship and Trump’s triumphant return to the White House.

    The biography of Duke and Duchess of Windsor was updated in 2020, releasing declassified documents showing pictures of them with Hitler as they supported Germany. Will we have to leave the truth of Trump’s personal dictatorship/monarchy to be revealed to our grandchildren’s grandchildren?
    Biography updated 2020: “When King Edward VIII abdicated the British throne in December 1936 to marry Wallis Simpson, the pair, now styled the Duke and Duchess of Windsor, began a decades-long semi-exile in continental Europe. Their lavish lifestyle, which included friendships with louche characters of dubious distinction, led to criticism by the press and public. But documents, including some only recently declassified, may help bolster an even darker claim — that the couple harbored pro-Nazi sympathies and were involved in a failed plot to overthrow the British crown during World War II.”

  2. Greenhouse and Wegman excellently described the theocratic arrogance of the current Supreme Clown Court’s right wing members. They make no apologies for their arrogance and have made it very clear that ethical standards do not apply to them. Period!

  3. This is the thing that changed my mind about the Court. It’s clear that we cannot shame the shameless. Of the methods of correction that have been floated, only one would not require an Amendment. That’s the expansion of the court. The logic to this solution is that the number of justices should match the number of circuits. That is rational and fairly simple. There were 9 circuits when the current count was set. There are now 13.

  4. Justice Jackson’s decision in Barnette should be required reading for all Americans — in fact, we should all read it once a year. Jackson would later resign his lifetime Court appointment to serve as the lead prosecutor at Nuremburg.

  5. George W. Bush appointed Alito to the Court. Are we really surprised at his votes and decisions? It didn’t begin with Trump!

  6. JoAnn,
    It’s more than the three Trump-appointed liars. It includes Sam Alito who was nominated by the second Bush incompetent. Thomas was appointed by the other Bush incompetent. The pattern is simple and easy to see: EVERYTHING REPUBLICANS TOUCH DIES. In this latest egregious and moronic decision, the abject corruption of Republican-appointed Justices is there for all to see. Did I forget to mention Roberts’ wife?

    Until Republicans and Republicanism is purged from our government – everywhere – it will only get worse as the party and its corporate-funded minions race back to the 19th century where few regulations got in the way of profits.

    Ultimately, it’s always been about the Benjamins.

  7. The freedom of reproductive rights by abortion vs those that see a child’s “right to life” will always be a rocky debate. Many on both sides never really thought that Roe vs Wade would be overturned. Here is a piece from politico 3 days ago on the decision and why some say it happened. (The decision definitely weighed in on the 2020 election as women were told their constitutional right to abortion was taken away by rogue justices.)

  8. March 8, 2009, I lost my beautiful, 24 year old granddaughter Jennifer and the 5 month baby girl she was carrying, hoping to be able to carry her to term. Jennifer developed a possibly fatal seizure disorder at age 20; she knew the dangers and, against all medical advice and our begging her, she wanted to have her baby. She died 3 weeks after John Travolta’s 18 year old son died of the same seizure condition. Her choice cost her life and the life of her daughter; we will never know the statistics of the fatalities of forced pregnancies due to health conditions of the mothers or the babies. The map of Texas on the “Reid Out” program recently showing the high number of counties which have no OB/GYN health care to care for their forced pregnancies…or for their healthy women who want to have their babies but develop life-threatening conditions, to themselves and/or their babies, but have no OB/GYN doctors to save either of them. The mother’s politics or religion or race or ethnic background were not considered; all were targets of forced pregnancies and possible death of either or both.

  9. Jehovah’s Witness was also persecuted by the Third Reich, in addition to Jews, homosexuals, and those whose mental faculties were different from the citizenry at large. That the United States and the Reich shared this “feature” will probably not make it to history textbooks in Florida.

  10. An expansion of the Supreme Court would solve the problem of overload that is now such a drag on the number of cases the court can reasonably hear in one session. But it would not solve the ethics problem. What is needed to address that destructive problem is a complete overhaul of the ethics rules for ALL justices AND the Congress.
    IMO the level of corruption in our government has reached a critical mass so vast that we are hurling toward self destruction. That corruption has given us legislation and rulings that allows for the proliferation of weapons of war in the hands of every angry, crazy fool. Just look at what happened in Broad Ripple over the weekend… and what is happening every week in schools, places of worship, and public places across the land.

  11. The Dobbs majority paid scant if any attention to the doctrine of stare decisis, a neglect which gave them an opportunity to decide any appeal without regard to prior holdings – holdings they could ignore via distinctions in law and fact where such distinctions (if they exist) should not by rules of constitutional construction determine substantive outcomes like the reversal of Roe. Perhaps if some legislator proposed a legislative reversal of Marbury v. Madison the court with its own authority at stake would take a more robust interest in following the doctrine. Far out? How far out is Dobbs?

    To do: Add four justices to the court, codify Roe, and establish a code of ethics for the court.

  12. Harold — another fact that won’t make it into FL school books is that Hitler and his minions used Jim Crow laws as blue prints for how to “regulate” the Jewish population and place them into ghettos. What’s also interesting is that they found some of the Jim Crow laws “too extreme.”
    (See “The 1619 Project” (Hannah) and “Caste: The Origins of Our Discontents” (Wilkerson) for details.)

    On today’s topic – unapologetic arrogance is one of the hallmarks of a narcissist. There seem to be quite of few of those deciding of country’s future as of late.

  13. Vernon, once again you nail it.
    “Sorry” is not in the vernacular of conservatives. Has anyone ever heard of an apology, a recognition of having made a “mistake” by, for instance, Newt the G., for having claimed that there was no such thing as even acid rain? Like Sen. Joseph McCarthy, they have no shame, no “…sense of decency.” They are driven by agenda, religious views and power and the money it brings, and anything they have ever said that they see as furthering that agenda, is just wonderful, regardless of who, and how it hurts, in their myopic eyes.

  14. Theresa is right that expanding the Supreme Court would ease the overload but, the problem is in the lower courts with state level infighting and sending cases to SCOTUS which should be resolved by state courts.

    I am admittedly a conspiracy theorist but…I do not trust the recent sane level decisions passed by SCOTUS; I believe we are being distracted till we relax and begin to trust them again and will find Trump cases resulting in his favor along with those of his minions who have been waiting for a court date for nearly a year. The Special Prosecutor asked the “docs” case be rescheduled in December; the SECOND E. Jean Carroll case was already scheduled in in December. The judicial games have begun in earnest!

  15. Thank you, John S. for the link to the Politico article.

    In Prof. Kennedy’s most recent book, the impacts of the changes to women’s rights are clearly illustrated with publicly available data to back up the conclusions.
    Look around the world at so many autocratic governments that violently suppress the rights of minorities, especially women, and see how they prosper. The Saudis and their like will eventually run out of resources to exploit. The Chinese are already dealing with their micromanagement of reproductive decisions. “How do you keep them down on the farm after they have seen” what the democratically governed countries of the world enjoy? N. Korea uses starvation and execution to keep that window to the world shut tight.

    The men and complicit women on the courts make a mockery of the idea of equality and parity. Be prepared for the continued corrosion of voting rights as the ideologues and demagogues decide that once again, minorities and women are less than to justify their self-serving superiority.

    As technology continues to supplant workers with machinery, women and minorities will suffer the most by being pushed into the lowest payed and most manual of labors, paid at the lowest possible wage. After all, minimum wage is still $7.25 an hour.

    If women turn out to vote, more efforts will be used to suppress that vote. Mark my words. History has shown us what happens when the wealthy and powerful men push back. It is never pretty and is often deadly to those with the most to lose.

  16. I think the folks who voted to overturn Roe were practicing medicine without a license.

  17. JoAnn,

    I am so so sorry for your granddaughter Jennifer and your great-granddaughter. The apostle Paul talked about the thorn he had in his side, and that It was a constant malady until the day he died. Grief becomes part of us, it never really goes away, it stays with us until we’re gone. The apostle Paul had a lot of grief and guilt from those that he had put to death before he became a disciple of Christ. That never left him.

    The so-called Christian leaders of today, become involved in politics, and, they practice seditious and insurrectionist behavior.

    But what did Christ say in Romans the 13th chapter? Give Caesars things to Caesar and God’s things to God. When the Sanhedrin asked Christ about taxes, he said whose picture was on the coin? They said Caesars. That’s when he made his proclamation.

    He also said in 2nd Timothy 4:2-4 in which idolatry would be practiced and gods would be created to alleviate one’s conscience and allow their desires. Basically having their ears tickled.

    Christ also explained why he would never get involved in earthly politics,

    John 18:36
    36 Jesus answered: “My Kingdom is no part of this world. If my Kingdom were part of this world, my attendants would have fought that I should not be handed over to the Jews. But as it is, my Kingdom is not from this source.”

    Christ lived a spotless life, and his apostles followed his lead. The penalty for not doing so was documented in the case of Judas Iscariot.

    The hypocrisy being displayed by those who claim to be Christian is mind-bogglingly bold. Secular society is supposed to allow for freedom of folks to practice their own religion, and no state-sponsored church can force certain religious beliefs on those of other beliefs. No matter what they are.

    Just like Judas Iscariot, there will be a reckoning for those who are seeking power and authority through the secular authorities instead of giving God’s things to God and conducting themselves in accordance.

    Here’s an interesting example of idolatry…..

    Moses Maimonides, of the twelfth century: “A timber upon which anyone has been hanged is buried; that the evil name may not remain with it and people should say, ‘This is the timber on which so-and-so was hanged.”’ But Christian Church actually honors the very thing that, according to them, was the instrument on which Jesus was tortured to death!

  18. The US electorate broke the Supreme Court by electing people unqualified for the positions they held because they did not agree with the spirit of the Constitution and found a way to interpret its words in self satisfaction ways.

    The electorate is what it is. The problem to be solved can be addressed over time in multiple ways.

    Remove private funding from politics by funding campaigns publicly.

    Elect the President by the popular vote.

    Severely restrict gerrymandering.

    Clarify the insanity of “originalism” by revealing it’s impossibility.

    In other words restore democracy.

  19. John S. – you bring up an interesting point – According to the Supremes, the”right to privacy” was “made up” since it wasn’t specifically discussed in the new 18th century country. Somehow, the “right to life”, which only began to be used in the context of abortion during the 20th century, isn’t “made up” — how interesting – how convenient

    Kathy M – Hitler may have used Jim Crow laws as a model (the similarities are striking), but putting Jews in a ghetto is a very old European custom, being started in Venice in 1516 and copied widely. The word “ghetto” may have been derived from an Italian word for “foundry”, the site of the first ghetto.

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