Across the geopolitical west, public trust and confidence in the institutions underpinning democracy is waning, whether the issue is unrepresentative electoral systems, a failing “rules-based order”, the chronic inability of governments to deliver their promises, or – particularly in the United States – politicized judges fundamentally basing their decisions on a pre-existing ideological determination rather than independent, impartial, reasonable and proportional judicial reasoning.  

For the first time in U.S. history, the Supreme Court under the control of five right-wing Supreme Court judges – representing the collapsing separation in that country between church and state – took steps to dramatically reshape America’s social and cultural contours by eliminating an established constitutional right for women involving the most fundamental of human concerns: the dignity and autonomy to determine one’s reproductive health care, wellbeing, and what happens to one’s body.

America’s social contract with its citizens lies in tatters. What happens next is for Americans to decide.

– Globe and Mail, June 28, 2022[1]

In June 2022, in the decision of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled its nearly 50-year precedent of Roe v Wade, the 1973 case that legalized abortion nationwide:[2]

“Roe [v. Wade], for whatever its weaknesses, recognized that while states have an interest in protecting unborn life, women have a right to “bodily integrity” and “personal autonomy in matters of family” that includes the right to terminate a pregnancy. Roe demanded a delicate act of balancing the state’s interest against a woman’s right, a balance that the court has now eliminated. Against the interest of the state, the court now declares that there is nothing else to weigh, except, perhaps, a woman’s right not to remain pregnant in risk to her own life. How a woman deals with an unwanted pregnancy is no longer an issue of personal choice; it is a matter of state control.”

In this respect the Court’s decision has fundamentally curtailed women’s constitutional rights, and their status as free and equal citizens in the United States.  World leaders, supreme court justices, and international human rights groups condemned the U.S. Supreme Court’s decision overturning Roe v. Wade.[3]

Justice Kagan gives pointed warning about the ‘legitimacy’ of the court, seemingly calling out justices with ‘political social preferences’.

– Business Insider, July 21, 2022[4]

Across the western world – from business to politics, and yes the law – there is a need for ethical trustworthy leadership to deter authoritarianism, and support democracy and the rule of law.

The U.S. Supreme Court is a cautionary tale in which a right-wing appointed majority have been positioned to implement an ideological inflamed agenda to the detriment of the country’s constitution and democratic institutions. Unfortunately, on reading the recently written judicial decisions of this court, it is becoming apparent that these Supreme Court justices are not simply “neutral umpires calling balls and strikes”[5] in the interest of the rule of law and society, but rather an authoritarian leaning right-wing “partisan supreme court whose rulings on abortion, gun ownership”, church-state separation, “and climate action” defy “majority opinion and common sense”[6] and reasonable, proportional and restrained judicial reasoning.

And, “when decisions are seen as ideologically motivated, judicial legitimacy – the key tool the court has to enforce its decisions – is threatened”.[7] That is particularly the case today with the United States Supreme Court, where politically appointed ideological judges “appear to have decided that it only needs to follow the law when it feels like it”, abandoning legal rules and precedent – and at times seemingly reasonableness, proportionality, and the rule of law itself – to undermine if not curtail women’s fundamental rights to equal citizenship, autonomy, and freedom: with grave implications for their health, lives and wellbeing.[8]

The Court’s extreme right-wing majority’s decision to unilaterally remove abortion and bodily autonomy rights for women is the most extreme example of its increasing radicalism and oppression.

Nearly 60% of Americans did not want to see Roe overturned, including more than 30% of Republicans. The number of Americans who identify as “pro-choice” reached a record high … [as] the Supreme Court was poised to upend a half-century of constitutional precedent.

– Time Magazine[9]

With the Court’s increasing refusal to abide by long-standing legal precedents or to be tempered by an awareness of the lines that cannot be crossed if the judiciary is to remain above the political fray (as neutral, impartial and independent decision-makers), this is – to such a court – not seen as a perversion of the Constitution, and equality, and the rule of law, but rather emblematic of its smooth functioning. And in this new era of self-empowerment, unlimited power – and apparently complete impunity – the extremist majority of the U.S. Supreme Court is only just beginning, turning what is supposed to be a citadel of justice and neutral arbiter of the law into an unrestrained political instrument for autocratic and theocratic power.

It is not hyperbole to say that the right-wing majority block of the Supreme Court have set America back to the 1950s in the last month alone. The Supreme Court curtailing women’s constitutional rights to reproductive health care and equality (Dobbs v. Jackson Women’s Health), rejecting reasonable legislative efforts to curb gun violence and promote gun safety (New York State Rifle & Pistol Association v. Bruen), restricting the U.S government’s ability to protect the environment in respect to greenhouse-gas emissions and the climate crisis (West Virginia v. E.P.A.), and sidelining the constitutional mandate to keep religion out of government (Kennedy v. Bremerton School District), are not the kind of stories that inspire confidence in a Court that appears willing to double down and treat women and the citizens of the United States as collateral damage to their ideological, religious,[10] ‘big business’, and political agenda.

Beyond the concern for the decisions themselves, in respect to the legal reasoning in support of the decisions “the majority’s aggressive tone and overt embrace of ideological theories well outside the judicial mainstream” should raise “alarm bells”.[11] The significance of authoritarianism as an influence on the legal thinking and judicial decision-making of the Court’s right-wing majority is an issue that appears will become more apparent as future decisions are released.

The combination of crumbling democratic norms in the appointments process and an ideological court out of step with mainstream America raises questions of how the Supreme Court could be reformed.

– Professor Matthew Lebo and Professor Ellen Key[12]

Impact on US Supreme Court’s Reputation and Legitimacy & Public Confidence

The Supreme Court has ruled that there is not a constitutional right to abortion – particularly one that balances the state’s asserted interest with the individual’s rights under the Constitution – in the United States, upending the landmark Roe v. Wade case from nearly 50 years ago in a rare reversal of long-settled law that fractures women’s equality, autonomy, privacy, and reproductive health rights in the United States. The decision is an outlier in the western world, and unilaterally sent women’s equality rights and ability to control her reproductive health backwards:[13]

“Support for abortion has never been higher, with more than two-thirds of Americans in favor of retaining Roe, and fifty-seven per cent affirming a woman’s right to abortion for any reason. Even so, there are Republican officials who have made it clear that they will attempt to pass a federal ban on abortion if and when they control both chambers of Congress and the Presidency. Anyone who can get pregnant must now face the reality that half of the country is in the hands of legislators who believe that your personhood and autonomy are conditional—who believe that, if you are impregnated by another person, under any circumstance, you have a legal and moral duty to undergo pregnancy, delivery, and, in all likelihood, two decades or more of caregiving, no matter the permanent and potentially devastating consequences for your body, your heart, your mind, your family, your ability to put food on the table, your plans, your aspirations, your life. …

The future that we now inhabit will not resemble the past before Roe, when women sought out illegal abortions and not infrequently found death. The principal danger now lies elsewhere, and arguably reaches further. We have entered an era not of unsafe abortion but of widespread state surveillance and criminalization—of pregnant women, certainly, but also of doctors and pharmacists and clinic staffers and volunteers and friends and family members, of anyone who comes into meaningful contact with a pregnancy that does not end in a healthy birth. …

[S]tate-level anti-abortion crusades have already turned pregnancy into punishment, and the ways in which the situation is poised to become much worse. … In the states where abortion has been or will soon be banned, any pregnancy loss past an early cutoff can now potentially be investigated as a crime. Search histories, browsing histories, text messages, location data, payment data, information from period-tracking apps—prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate.” 

Polling conducted upon the release of the Supreme Court’s “decision to overturn Roe v. Wade paints a consistent picture: most Americans oppose the decision and lack confidence in the Supreme Court itself. What’s more, there is broad concern that the court’s decision to roll back the right to abortion is simply the first in a series of similar rollbacks, potentially targeting same-sex marriage and the availability of contraceptives”.[14] Why? Because it reasonably appears that the Supreme Court, as currently constituted, sees itself as having “become the most powerful branch of the federal government” –stripping women of their constitutional rights, hamstringing states’ ability to regulate guns, undermining Climate change policy, and sidelining the constitutional mandate to keep religion out of government – “virtually overnight”. The new ideologically inflamed right-wing majority bloc have now “flexed its power at a level so in defiance of public opinion and long-standing legal principles this term that” many legal observers opine that “its members must believe themselves immune to any and all accountability”.[15]

Abor­tion rights are over­whelm­ingly popu­lar. Pew Research Center data indic­ates that 61% of Amer­ic­ans think abor­tion should be legal in all or most circum­stances, and only 8% of U.S. adults think abor­tion should always be illegal. 

– Brennan Center for Justice[16]

When scholars, judges, lawyers and legal commentators discuss a nation’s judicial “legitimacy”, they are talking about something more fundamental than job approval or whether the public agrees with the Court’s ruling in a specific case. They are talking about the public’s faith in the very idea of the judiciary and the nation’s courts: the notion that it should be the final arbiter if its decisions impacting an increasingly disaffected and divided society do not appear – in fact or perception – to be insulated and independent from all sources of improper influence, including partisan and religious ideology and political bias or preference. Public confidence and a “basic faith” in judicial independence and “the Court’s mission” to uphold the rule of law “is essential to its functioning”. ^[17]

A common feature of both democracy and the rule of law is that a purely institutional approach does not say anything about actual outcomes of processes and procedures, even if the latter are formally correct. For indeed, what do we have if the rule of law is purposely limited to just a formalistic and legalistic approach (i.e. form over substance, promoting democracy for a particular political party’s own supporters while oppressing others)?[18]

[Anti-abortion laws are] meant to relegate people to a second-class citizenship.

– Professor Michele Goodwin, Law Professor, Time Magazine[19]

When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between ‘rule by law’ – whereby law is an instrument of government, does not apply to everyone equitably, and the government and the powerful may be considered above the law – and ‘rule of law’ – which implies that everyone in society is entitled to fundamental rights and democracy, bound by the law, including the government and the powerful. Its roots can be found in classical antiquity, and is an internationally accepted standard forming the foundation upon which the United Nations is built.  In Western society, constitutional limits on power – a key feature of democracy – require adherence to the rule of law.^[20]

The rule of law, the separation of powers, and the independence of a strong judiciary is essential to a well-functioning of society, and eschewing the road to authoritarianism:^[21] protection from government acting arbitrarily, and guarding against the potential for excesses and abuses of power. The question then, can the rule of law survive judicial politics that we are now seeing coming to fruition in the U.S. Supreme Court? If the rule of law continues to be undermined and politicized there will likely be a constitutional crisis. At some point, if the independence of the judiciary is destabilized, the public in those jurisdictions may be poised to lose its faith in a judiciary that it regards as overtly politicized, indifferent to the rule of law, and not impartial to the public it serves.[22]

Public confidence in the judicial system is one of the essential components of a nation based on the rule of law,[23] and the judiciary’s most “sacred charge” is “to uphold the law and administer justice fairly to all persons, no matter how powerful or small”.[24] There “is little advantage in the promulgation of laws, however benign, unless there are judges who are able and willing to enforce them” and legal and career professionals not intimidated to uphold them.[25] “Otherwise, the powers that be can disregard” or manipulate “the laws with impunity”[26].[27]

A woman’s ability to get on in life depends heavily on her ability to control her reproductive health. That is why almost all of the 38 countries in the OECD [Organisation for Economic Co-operation and Development], a club of advanced economies, allow abortion on request in the first trimester of pregnancy, and often beyond. Across the world, laws increasingly reflect the principle that decisions on abortion are rightfully a woman’s to make. Most Americans agree, yet their country, which sets out to be a beacon for democracy and freedom, has this week taken a dangerous step towards oppression.

– The Economist[28]

Unfortunately, with the recent decisions of the majority bloc of the U.S. Supreme Court, the reasoning of the right-wing majority is not legal but political, not principled but purely results driven and designed to impose the policy preferences of these particular right-wing partisans, with a flagrant disregard for the instability and disorder created by their actions.[29]

Legal “precedent and the principle of stare decisis are supposed to limit judicial discretion and provide stability to the law. But time and again, as in this decision, the conservative justices are willing to overrule the precedents they dislike. They” appear to be “motivated by carrying out the Republican platform, not a judicial philosophy or an interpretative methodology. The 5 right- wing judges who entrench the Republican Party’s control over the federal judiciary come across more as loyal backbenchers than independent judges delivering principled legal judgments. The only question is how far they will go” – because they appear to be acting “not because of any constitutional principle, but because a majority of the justices have decided they have unbridled power to govern the lives of Americans has they choose”.[30] And as the law turns from ‘Rule of law’ to the compliance by force of ‘Rule by law’:[31]

“As [the] conservatives on the Supreme Court methodically rescind civil rights that have been affirmed in the past century, they’re also giving states permission to drag the country to a bygone era … conservative-led states will turn the country into a land of legal tripwires where expressions of personal liberty like voting, choosing to protest, choosing when to be pregnant and choosing whom to have sex with are met with punishment.

And the people who … fight these laws may find themselves newly ensnared in the criminal justice system, feeding a very different era of mass incarceration authorized through conservative Supreme Court rulings.

We’ve already begun to see this possibility taking shape in states where so-called trigger laws banning abortion went into effect as soon as the Supreme Court overturned Roe v. Wade. Pregnant people have and will continue to defy abortion bans, because abortions are necessary, potentially life-saving procedures. And that means some states may soon be forced to decide whether to jail those who exercise their now-former right to bodily autonomy.”

[We expect] mass criminalization on an unprecedented scale.

– National Association of Criminal Defense Lawyers, Time Magazine[32]

It appears to many legal observers that the U.S. Supreme Court has become an illegitimate institution. Why? Because, when a politically appointed conservative majority of hard-core reactionaries simply impose the authoritarian far-right policy preferences by fiat, there is little reason for the citizens of a country to respect the Court’s authority. And this is the reason why judicial legitimacy is so important – because the Supreme Court in any western country is simultaneously the most and least powerful branch.  Yes, the judiciary is capable of striking down any law or executive action, but it is not capable of enforcing its decisions with anything except persuasion and respect for its legitimacy.

The authoritarian judges forming the Supreme Court majority are undermining “long-standing precedent by reaching beyond its constitutional jurisdiction as mere arbiters of the law and, instead, inserting itself into the realm of executing it” in their own image – eroding trust in the Supreme Court as a critical national institution.[33] Not surprisingly, these judges have a record of hostility to fundamental civil and constitutional rights principles, and from the view of many, have used their judicial office to twist the law in ways that undermine these principles and the legitimacy of the courts. And in this respect, the Globe and Mail – Canada’s “newspaper of record” – had this to say in an article entitled “America’s social contract with its citizens lies in tatters”:[34]

“The social contract in the United States is no more. The tacit agreement between its people and its government on which the country’s democratic order is based – the exchange of consent by the people for rights, protection and the institutions necessary for a country to operate – has eroded to the point at which it is almost meaningless. …

Deep inequality; unaffordable and inaccessible basic needs, including health care and education; structural state and individual violence against racialized people; endemic racism and prejudice; catastrophic and routine gun violence; cruel and unusual punishment in the prison system; a coup attempt backed by some political elites, including the president; gerrymandered electoral districts and voter suppression; a partisan Supreme Court whose majoritarian / countermajoritarian balancing capacity has fallen apart as it strips away fundamental rights supported by the majority, such as the right to an abortion. …

At its most basic level, the U.S. has abandoned its fundamental duty to protect its people. That function is central to the social contract; it’s the fundamental point of the thing. Social contracts are primarily meant to establish order. …

Just this month, decisions by the U.S. Supreme Court on abortion, gun control and Miranda rights for instance, will make the country far less safe and far less just. In the wake of the decision to leave abortion laws up to the states, several states immediately banned it more will follow. Former vice-president Mike Pence called for a national ban. This is the stuff of theocracy. The court’s decision not only limits the rights of people who may become pregnant, it will lead to deaths. It is a fundamental violation of the right to life. So is the lack of adequate gun-control measures in a country where more than 45,000 people were killed by guns in 2020. A recent effort to impose some control resulted in a bipartisan bill – shocking, of itself – but it leaves much to be desired.

If the country continues on its current course of decline, the U.S. will face violent revolution or oblivion – maybe even both. A mix of plutocracy, theocracy and juristocracy – rule by courts – is no way to govern, nor is it sustainable. Eventually, people will have had enough. Eventually, certain functional states will no longer see the value in being part of a federal union. Eventually, it will all fall apart.

The alternative is … renewal through structural change, driven by protest, civil disobedience, mass strikes, new candidates for office at every order of government – candidates who understand the needs of the moment and what it takes to meet them – and a refusal to take any party or politician at their word ….  [R]enewal calls for the provision of fundamental needs, including personal security – a value that would comprise the right to safe, accessible abortions and not being killed by gun violence.

Renewal is much easier said than done. The United States is marked by deep partisan polarization that is baked into the very identities of millions of Americans, led by cynical political and media elites who seem only too keen to lead them down the primrose path to doom. That makes renewal a battle for, as the country’s generals might put it, hearts and minds. Those who wish to preserve the country have no choice but to engage in and win such a struggle. The alternative is worse – its logical, long-term conclusion unthinkable, perhaps, but long known by history. That alternative is utter collapse and destruction. So Americans must fight for a new social order as if their lives depend on it, because they do”.

Once citizens lose confidence in the fairness of the legal and political system, they may turn to other means to assert their basic rights, and inevitably this results in violence and loss of human life.

– Daniel C. Préfontaine QC and Joanne Lee^[35]

As one can see, the far-right majority on the Supreme Court are “playing a dangerous game here, because the more it seems like a group of arbitrarily-empowered reactionaries with absolute authority to make 2022 look like 1787, the less the public is going to be inclined to accept its rulings” and they are “met with discontent and resistance. Already, we see that approval of the Court has slipped to historic lows”:[36]

“By being nakedly reactionary, the Court is risking its reputation, and thereby its power. You can sometimes convince people that wearing a robe gives you authority and credibility, but if you get too outlandish in your pronouncements, they will wonder whether the robe actually means much. As the Court continues to defy the popular will and produce extreme and harmful outcomes (more mass shootings, women thrown in jail for miscarriages), some people may begin to ask why we owe deference to Supreme Court opinions at all. Some states may flirt with the idea of simply defying the Court, which has no army and cannot enforce the laws itself. The idea of simply ignoring the Court is frightening— … “dangerous—because it inches us closer to a situation in which the rule of law breaks down altogether. But nobody is morally bound to obey the Supreme Court absolutely. If the Supreme Court ordered us to commit an atrocity, we would be obligated to practice civil disobedience. The correct response to atrocious racist decisions like Dred Scott or Plessy v. Ferguson would have been for state governments to simply ignore them. Dred Scott, remember, ruled that legislators could not free people from enslavement and had to recognize the rights of slave-holders. Any moral person in government would simply ignore such a ruling, because of the criminal wrong there would be in handing a person over to an enslaver. [Note: the difference between Rule of Law and Rule by Law]”

Democracy, the rule of law, and our institutions are stable and functional – until they are not.[37] On the surface, things may look generally healthy, but society must act with care – democratic values and the rule of law is not as resistant to change as many believe,[38] leaving “many of us struggling to understand” how it is being hollowed out from within at home and abroad.[39] There is a vast difference between a society whose arrangements – in particular its government and economy – roughly serve all its citizens, and one whose institutions have been eroded from their democratic moorings, weakened “little by little”[40] over time into one that respects democracy, the rule of law, and judicial independence in name only.[41]

Unelected, unaccountable judges are on the verge of limiting our ability to fight climate change while forcing people to birth unwanted babies in a world with almost unlimited access to deadly weapons. It’s perhaps no wonder that a majority of Americans disapprove of the Supreme Court.

– The Supreme Court’s Legitimacy Crisis: From Recusal Issues to Blatant Partisanship[42]

The independence of the judiciary is key to its role in the constitutional system, but many experts note the justices are now acting more like just another political branch.[43] The court has recently handed down four landmark decisions (striking down gun laws, environmental laws, church-state separation, and women’s right to healthcare in respect to an abortion), each disastrous in its own right. But taken together they reveal a dangerously hidebound court intent on turning the constitution into an instrument of obstruction and instability – as opposed to peace, order and good government – a formidable obstacle to actually solving some of the nation’s most pressing problems.[44]

In any properly functioning democracy, the judiciary’s authority rests largely on the fact that it is seen to be a neutral arbiter of the law, guided by immutable principles of justice and balance, rather than partisan preferences or personal religious beliefs.[45]

Forcing girls, or anyone for that matter, to bear children is not just immoral, it’s dangerous.

– Los Angeles Times[46]

The current majority on the court is anything but conservative as they advance an extreme far-right ideological and authoritarian vision that is out of step with the public, the rule of law, and with main­stream legal thought. This adherence to a far-right conservative agenda at the expense of the country and the Constitution spells a crisis for the U.S. Supreme Court’s own legitimacy as it appears to shape itself into a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover by an extremist Republican party.

The effect is to undermine the institution of the Supreme Court and its appointed judges as being neither independent nor impartial, and threatens the rule of law. Such a court – dramatically out of step with the larger shape of their society and its citizens – has lost and will continue to lose much of its prestige and sense of legitimacy, creating in turn a serious crisis of confidence in the Courts and in the administration of justice both at home and abroad.^[47]

In addition to the ramifications in respect to the public’s loss of confidence in the judiciary, there are also international implications as the perception of a compromised judiciary likewise impacts on transnational and international trust and legitimacy, specifically impacting international agreements and disputes, stability, and order in the world.^[48]

We tend to congratulate ourselves in Western democratic countries on the rule of law and our judicial independence.^[49] Yet judicial independence is “a fragile thing”,^[50] as we now see in the U.S. Supreme Court.[51]

An extreme conservative majority holds absolute control over the court. They will likely hold this power for multiple generations. They intend to use it to impose a far-right vision that most Americans oppose, twisting the rule of law into whatever they say it is, depending on the ideological outcome they hope to achieve.

– The Guardian[52]

Many world leaders, former supreme court justices, and international human rights groups condemned the U.S. Supreme Court decision overturning Roe v. Wade. The big picture is that with the right-wing majority’s decision, the U.S. became an outlier in the western world on abortion rights and the appropriate balance between a state’s asserted interest and an individual’s rights. In the last 25 years, nearly 60 countries have recognized women’s right to choose, reproductive choice, and their autonomy.[53]

Abortion was decriminalized in Canada in 1988 where the Supreme Court of Canada found that the abortion law violated a woman’s right to life, liberty and security of the person, guaranteed under the Canadian Charter of Rights and Freedoms.[54] The Canadian Supreme Court’s constitutional analysis of abortion legislation – as, if and when, it is passed – requires that such legislation impose only such “reasonable limits” on a woman’s constitutional rights (i.e. s. 7: life, liberty and security of the person / personal autonomy; s.15: equality rights / equal before and under the law) as can be “demonstrably justified in a free and democratic society”. In assessing whether an infringement is justified, the Supreme Court of Canada applies a “proportionality test” which balances the state’s asserted interest with the individual’s rights under the Charter.[55]

The U.S. Supreme Court is an international outlier in many respects when compared to the high courts of other coun­tries … The present processes by which people ascend to the Court, stay on the Court, and wield power once on the Court are deeply and trans­par­ently flawed.

– Brennan Center for Justice[56]

Hidden in Plain Sight – Extreme Far-Right Ideology and Authoritarian Vision

 Ties between the far-right and police, politicians – and yes court justices – have been identified,[57] but conservative politicians and justices appear to be continuing to sacrifice “the legitimacy of the court in the eyes of the public in order to codify right-wing domination into law”. The Supreme Court appears to some commentators to be setting America’s “concept of an independent judiciary — in fact, the very concept of a supreme court — on fire to enact what” they are concerned “amounts to a white, Christian nationalist view of America”.[58] Professor of law, Lawrence Douglas, paraphrasing former “U.S. supreme court justice Robert H. Jackson”, noted that “the US constitution should not be read as a suicide pact. That seemingly obvious bit of wisdom appears” to be “lost on the present” ideologically agenda driven “court”.[59]

A new poll released Wednesday by Marquette University Law School found a mere 38% of adults approve of how the court is doing its job, compared to 61% who disapprove. Those numbers have essentially flipped in just a year’s time: In July 2021, a similar poll found the court had a 60% approval rating compared with 39% who disapproved. 

– Self-immolating Supreme Court’s credibility spirals, polls finds[60]

But there have been few if any consequences for those found to be linked to the far right. When persons with extreme ideology are allowed to assume leadership roles in our justice systems, we begin to see the movement from the democratic ‘Rule of Law’ to the authoritarian ‘Rule by Law’:[61]

“The legal and political battles over the future of abortion access, now unfolding at the state and local levels, are already reflecting this futuristic landscape. Anti-abortion advocates, who have spent a half-century amassing power in the federal judiciary and in state legislatures, treated the decision to overturn Roe as a starting gun. Within hours of the ruling, policymakers in several states had called for special legislative sessions to pass new anti-abortion bills, and some local prosecutors and sheriff’s offices announced they would begin enforcing any new measures immediately. The weekend of the Friday decision, state lawmakers at the National Association of Christian Lawmakers conference promoted legislation that would prevent people from traveling across state lines for abortions while others sought ways to crack down on abortion pills, such as treating mailing abortion pills as “drug trafficking.” Republican leaders in the U.S. Congress floated a federal abortion ban. …

Already, doctors and health care providers are warning that new state anti-abortion laws will punish women carrying fetuses that cannot survive outside of the womb, and endanger those seeking care for miscarriages and other pregnancy complications. In March, Missouri legislators introduced a measure making it a felony to perform an abortion on an ectopic pregnancy—a condition in which a fertilized egg implants outside the uterus and cannot survive, and that can be life-threatening to the pregnant person. Now, ob-gyns around the country are reporting that some pharmacies are refusing to fill prescriptions to treat miscarriages; others say they’ve seen hospitals either outright deny care or require patients with pregnancy complications to wait until their conditions become life-threatening to intervene. This brave new world, doctors say, compounds a horrific problem: the states banning abortion already have some of the highest maternal-mortality rates in the country. …

Michele Goodwin, a law professor at the University of California, Irvine, highlights another similarity with the war that tore our nation apart 160 years ago. Already, she says, the explosion of new state bills in post-Roe America mirror the punitive Jim Crow laws that defined post–Civil War America. Both eras’ laws, she says, were “substantively and symbolically, meant to relegate people to a second-class citizenship.” Many of the new anti-abortion laws cropping up in states are designed not only to stop abortions, she says, but also to intimidate, to subjugate, to keep people fearful. “The way in which the state shows suspicion rather than care and respect for [people] leads people to internalize shame and guilt. And it means that people then will resist turning to the state when they actually need the state support and when they should get it,” Goodwin says. Like data-collection and surveillance efforts, these effects may fall hardest on people of color, poor people, and others who are already marginalized. …

Still, for many Americans, the opinion in Dobbs v. Jackson Women’s Health Organization came as a shock—a radical move undermining decades of once immutable legal precedent, upending politics, and running starkly counter to public opinion. A majority of Americans believe the court should have left Roe intact. The ruling was also sweeping in its implications. In his majority opinion, Justice Samuel Alito writes, “Roe was egregiously wrong from the start” because abortion is “not deeply rooted in the Nation’s history and traditions” [note: ignoring the actual history accepting such practices since at least the early 1600s onward]. The same could be said about the right to birth control, same-sex marriage, and same-sex sexual activity—points Justice Clarence Thomas explicitly underscores in his concurring opinion.

For the many millions of Americans just now grappling with the ramifications of this decision, the reality will be harsh.”

As noted in the U.S. news media, the most dire warnings about the end of women’s constitutional rights are now being reported to already be happening. For example:

• “In just the last week, Republican officials have sued to stop abortions even in medical emergencies, said child rape victims should be forced to give birth [which recently included a 10-year-old child sexual assault victim], and blocked a bill that would guarantee the right to travel to another state for an abortion. Meanwhile, doctors are denying pregnant people possibly life-saving care”.[62]
• “Without the protection of Roe, even doctors who perform legal abortions now live in fear of political persecution, violence, and prosecution. It is in this new environment that some hospitals in Texas, with one of the most extreme abortion bans, have stopped providing abortion care in medical emergencies. According to the Texas Medical Association, a hospital in central Texas told a doctor not to treat an ectopic pregnancy—a nonviable pregnancy in which the embryo implants outside the uterus—until it ruptured, which is a life-threatening condition. Two other hospitals told doctors not to treat patients whose water breaks too early and instead send them home to miscarry—which risks deadly infection. In both cases, hospitals are risking serious complications and even death in order to avoid an abortion when there is no possibility that the embryo or fetus will survive. The Texas Medical Association was so alarmed that it reported its findings in a letter to the Texas Medical Board, a state agency, asking them to intervene”. Some U.S. states are forcing pregnant women into medically dangerous and even life-threatening situations.[63]

It’s a frightening precedent, and delegitimizes the integrity of the court. … They seem to be on a tear to expand religious and gun rights, in the name of freedom. They are not, however, prepared to extend that freedom to women. Making these kinds of selective jurisprudential preferences obviously treats the Constitution like a toy. A constitution is not a toy.

– Justice Rosalie Abella, Supreme Court of Canada (retired)[64]

As is now apparent, deadly attacks on a democratic society can come from the very system meant to protect its citizens. In the U.S. there is research that documents “how $250 million in dark money has allowed the far right to engage in an ongoing, multiyear effort to accomplish through the courts what they failed to do legislatively” – rolling back the clock on the country’s laws and its very democracy:[65]

“In the 1930s, the courts were fully complicit in maintaining the country as a thoroughgoing ethnocracy, governed openly for the benefit of white men. Public schools in 21 states were racially segregated by law. ‘Separate but equal’ schools had been affirmed by the Supreme Court as late as 1927, in a unanimous decision allowing Mississippi to kick a Chinese American girl out of her local ‘white’ school for being a member of the ‘yellow’ race. The outlawing of segregation is settled law in our country, and nobody would dare dream of returning to those antiquated judicial interpretations, you might say? Several of Trump’s judicial nominees have conspicuously, outrageously, refused to say whether they thought Brown v. Board of Education, which ended legal school segregation in 1954, was correctly decided.”

This “well-financed network of wealthy donors who install judges sympathetic to a far-right agenda” have created  a majority Supreme Court of “Republican appointed justices who have delivered landmark victories for corporate and right-wing interests in dozens of cases (i.e. Citizens United v. FEC – tilting political influence toward wealthy donors and corporations, Shelby County v. Holder – undermining the federal Voting Rights Act, and Janus v. AFCSME – undermining labour unions),[66] which now includes overturning Roe v. Wade (Dobbs v. Jackson Women’s Health Organization).

Ties between the far right and police, court justices and politicians have been proven countless times. … As is now apparent, deadly attacks on our society can come from the very system meant to protect us. We cannot begin to quantify the full scope of violence that will result from the overturning of Roe v. Wade. Overturning Roe v. Wade was an attack on Americans perpetuated by the far-right … it will not be the last.

– The far-right violence of overturning Roe v. Wade, Toronto Star[67]

Racial dispar­it­ies have long pervaded every step of the crim­inal justice process, from police stops, searches, arrests, shoot­ings and other uses of force to char­ging decisions, and yes, wrong­ful convic­tions and sentences by Courts and judges.[68]

Conclusion

One would think that in the most complex legal and constitutional disputes heard before the U.S. Supreme Court, what appears to be a “toxic brew” of unprincipled constitutional interpretation to rationalize and justify a preferred political and/or social result (referred to as judicial ‘originalism’ by the court’s right-wing majority[69]), could not possibly be used to alter facts and principled, reasonable and proportional legal analysis and public expectations. However, in a world where facts and principled judicial interpretation and reasoning appear to have limited currency, it looks to be very hard to make winning arguments before this particular court by relying on principled, reasonable, proportional and logical constitutional analysis and interpretation.

The right-wing super majority on the Supreme Court are questioning fundamental legal precedent (and in respect to climate change, scientific principles), or just choosing to ignore them to impose their preferred policy preferences. This post-fact ‘results driven’ environment that U.S. citizens, litigants and their lawyers are operating in before the current U.S. Supreme Court makes dealing with this problem extremely difficult:[70]

“Bipartisan lawmaking and the goal of serving a single American public became not things to strive for, but things to campaign against. This take-no-prisoners attitude infected electoral politics and other public institutions, including the Supreme Court. And here we are.”

The original intentions doctrine is most often used to support narrow and technical interpretations of constitutional provisions based on the fiction that there is a clear intention behind the provision in question.

– The Unprincipled Use of Originalism, Alberta Law Review[71]

The right-wing court majority is undermining the Rule of law, judicial independence, neutrality, constitutional interpretation (reasonableness, proportionality), judicial restraint, and ultimately its own legitimacy. This appears to be about the raw exertion of power by five Republican appointed right-wing judges who have absolute, near veto-proof authority over the rest of the country. Millions of women across the United States have had their right to equality and bodily autonomy stripped because of this radical, activist court – and it likely will not end there based on the tenor of their recent decisions.

This court appears to be purposely toppling modern legal precedent and returning the law to its purported 18^th-century historical roots with all that entails – appearing determined to impose its ideological policy and extreme authoritarian social vision on the entire country without majority support of its citizens, and with an apparent disregard for the resulting instability and disorder created by their actions.

The only question is how far they will go as they continue to release judicial decisions moving forward – not based on legal precedent or principled constitutional analysis and principle – but apparently because “a majority of the justices have decided they have unbridled power to govern the lives of Americans as they choose”.[72]

Justice Thomas says the Supreme Court should ‘reconsider’ rulings that protect access to contraception and same-sex marriage as the court overturns Roe v. Wade.

– Business Insider[73]

And within this context there can be no court legitimacy without public trust and support for this institution. Among a nation’s most precious possessions is the “public trust” of its institutions and their leadership. Government, the judiciary, and the rule of law thrive on trust, such that a widening “trust deficit” in a nation’s institutions poses a significant risk to society. And the United States is indeed facing a crisis of trust in their Supreme Court that shows no sign of abating, thereby undermining social cohesion, stability and order.[74]

And public distrust is continuing to be driven by a growing sense of unfairness and inequity in the system with each decision released by the right-wing majority of the Supreme Court – the perception mounting that the nation’s highest court appears to be increasingly serving the interests of the few over everyone else. This is a wake-up call for America’s highest court to exhibit – in both word and deed – that it is independent, impartial, and reasonable.  They must do so not out of self-interest, but as an obligation to the public which has entrusted them with decision-making power and to whom they are ultimately accountable to maintain the public’s confidence in the justice system.

Supreme Court judges, like all judges, must earn trust by demonstrating trustworthiness, not just in capability but also in character: balancing competence with ethical principled behaviour. And it is incumbent upon a nation’s judiciary, and in particular supreme court justices whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system and the institution in which they serve.[75]

What is essential to avoid is the reality or the perception that judges are appointed because they will do the bidding of the government or favour a particular political faction. 

– Chief Justice B. McLachlin, Supreme Court of Canada, September 28, 2017[76]

We live in troubled times,[77] and in such times citizens need a trusted arbiter more than ever to resolve disputes neutrally under the law and without ideological agenda. Yet that is not the current direction exhibited by this particular Supreme Court right-wing majority. If they continue to push forward with the extreme ideological decisions reviewed in this article, these cases will only be the start. The court has already announced it will hear blockbuster cases related to affirmative action, voting rights, and further challenges to federal agencies’ ability to implement laws to protect the public. These are areas with clear, established precedents and laws—and they are “now in the crosshairs of an extreme majority” that appear by word and deed to be “itching to turn back the clock on them”.[78]

Rebuilding broad trust in the U.S. Supreme Court, and its role in acting as a neutral arbiter in resolving constitutional disputes, requires steps toward its depoliticization.[79] However, that will take the buy-in of all three branches of government (executive, legislature, and judiciary) and smart action in order to depoliticize the Supreme Court.[80] But all aspects of society have a shared stake in and responsibility to defend and promote judicial independence and impartiality, democratic values, and the rule of law, and this includes the legal profession, business, the independent media and citizens.[81] For a more fulsome outline and discussion of solutions and actions that may be considered, please see my articles of 2020 (“The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century”)[82] and 2018 (“A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence”).[83]

[J]udges … must be tempered by a constant awareness of lines that cannot be crossed, if the judiciary is to remain above the political fray and continue to effectively discharge its role of neutral, impartial, and independent decision-making. Judges are not politicians. Nor are they advocates. Judges are, quite simply, impartial decision-makers. That is their highest calling and they must, through all the changes, remain true to it.

– Chief Justice Beverley McLachlin, Supreme Court of Canada, May 5, 2001^[84]

America’s national and international success to date has been predicated on its constitutionally protected freedoms, separate branches of government, democratic norms, and stable legal system. To ensure the continuation of that success, America cannot allow this moment in history to be the high-water mark for rights and freedoms.

Public confidence in and respect for an independent and impartial judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. As history teaches us, if democratic institutions are not safeguarded and protected, no system of government is immune from sliding into an extreme authoritarian condition.[85]

The rule of law is indispensable to the enjoyment of our rights and freedoms and to respect for the democratic process under which elected parliaments make the law, an executive government responsible to the parliament carries it out, and the courts determine its meaning and application in disputed cases.

– Judge Robert French, Australia^[86]

Judicial independence and the rule of law and democratic values are key to a free society, and protect and support good government, peace, security, stability and prosperity.[87] However, there is a growing body of evidence depicting stress cracks in our institutions and the rule of law[88] – with one commentator suggesting “the rule of law” in the United States is “like a suspension bridge, still upright, but with cables snapping one by one”.[89] 

In this respect, however one views and interprets the U.S. constitution, it should not result in undermining women as citizens or result in the destruction of the very form of democratic governance the constitution was designed to protect.[90]

When political rights and civil liberties decline, we can be certain that this is accompanied by a decline in the independence and accessibility of the courts. Independent judges are the guarantors of political rights and civil liberties. … The connection is as simple as it is clear.

– Chief Justice B. McLachlin, Supreme Court of Canada (Sept. 28, 2017)[91]

As the foundation of a fair and just society, the appropriate application of the rule of law is “one of the greatest unifying factors” and the “nearest we are likely to approach a universal secular religion” for peace and good government[92], a strong democracy, and a decent society. Judicial independence and impartiality, the rule of law, the legitimacy of a country’s Supreme Court, and the social contract are key to a free and healthy society, supporting its communities and citizens to obtain the benefits of living together productively and in peace.[93] But these legal and democratic principles, values and ideals are fragile, and they need to be protected to endure.

Striving for and protecting these important principles, values and ideals is the right thing to do, and in the United States this is indeed the right time to do it.[94]

Eric Sigurdson

Endnotes:

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[1] David Moscrop, America’s social contract with its citizens lies in tatters. What happens next is for Americans to decide, Globe and Mail, June 28, 2022.

[2] Lawrence Douglas, The US supreme court is turning the constitution into a suicide pact, Guardian, July 6, 2022.

[3] Laurin-Whitney Gottbrath and Ivan Saric, ‘Horrific”: World leaders react to end of Roe v. Wade in U.S., Axios, June 24, 2022; Sean Fine, Roe v. Wade’s fall sets a ‘frightening precedent’, retired Canadian Supreme Court justice says, Globe and Mail, June 24, 2022; The Supreme Court’s rejection of Roe will hurt the poorest most, The Economist, June 24, 2022; Rob Picheta, Scrapping Roe v. Wade makes the US an outlier in the West. Here’s how it compares on abortion rights, CNN, June 27, 2022.

[4] Azmi Haroun, Justice Kagan gives pointed warning about the ‘legitimacy’ of the court, seemingly calling out justices with ‘political social preferences’, Business Insider, July 21, 2022.

[5] Matthew Lebo and Ellen Key, Can Americans be shielded from the U.S. Supreme Court?, The Conversation, July 4, 2022.

[6] Simon Tisdall, It’s not only Britain. The west needs honest, trustworthy leaders to deter autocrats, Guardian, July 10, 2022.

[7] Matthew Lebo and Ellen Key, Can Americans be shielded from the U.S. Supreme Court?, The Conversation, July 4, 2022.

[8] Ian Millhiser, The post-legal Supreme Court: What happens if the Court rejects the rule of law?, Vox, July 9, 2022. Also see, Nathaniel Mott, Biden Acknowledges Link Between Reproductive Health Rights and Privacy, PCMag.com, July 9, 2022.

[9] Charlotte Alter, Empowerment is not Power, Time, July 15, 2022.

[10] See for example: Kara Voght and Tim Dickinson, SCOTUS Justices ‘Prayed With’ Her – Then Cited Her Bosses to End Roe, Rolling Stone, July 6, 2022; Claire Lampen, What Exactly Does SCOTUS Consider a Conflict of Interest?, The Cut, July 7, 2022; Fabio Bertoni (General Counsel, The New Yorker), Justice Neil Gorsuch’s Radical Reinterpretation of the First Amendment, New Yorker, July 20, 2022:

“… [R]eligious maximalism is currently all the rage on the Supreme Court. Justice Alito’s opinion overturning Roe goes out of its way to dig up arcane historical references to prove that the drafters of the Constitution didn’t intend to protect abortion. But there is an inescapable sense that the Justice’s acceptance of the validity of the belief that life begins at conception is determined by his personal religious views. Alito, too, has publicly bemoaned hostility toward religion, which he calls ‘secular orthodoxy’, and blamed it for what he calls anti-Catholic prejudice. Justice Barrett and her family have been affiliated with People of Praise, an insular conservative Catholic group that rejects homosexuality; practices ecstatic Christian traditions, such as speaking in tongues; and is described as a ‘covenant community’. She testified during her Senate confirmation hearing that her religious beliefs do not influence her jurisprudence, but also that she did not view Roe as a “super precedent.” Clearly, most Justices have religious beliefs, and there are both liberal and conservative Catholics—no one should say that religious beliefs determine political affiliation. Still, the idea that religious speech (and necessarily, activity) must be protected over and above other kinds of speech—or over secularism generally—is grounded in a belief about the importance of religion in public life. But what will happen if government employees must be free to express and act upon their religious convictions in their jobs? How does a pluralist society function in that case? …

As the old saying goes, ‘Your right to swing your arms stops where my nose begins’. Telling government employees to stop swinging their religion at the public should not be unconstitutional.”

[11] Laleh Ispahani, The Costs of America’s Renegade Judiciary, Project Syndicate, July 21, 2022. See, Lawrence Douglas, The US supreme court is turning the constitution into a suicide pact, Guardian, July 6, 2022.

[12] Matthew Lebo and Ellen Key, Can Americans be shielded from the U.S. Supreme Court?, The Conversation, July 4, 2022.

[13] Jia Tolentino, We’re Not Going Back to the Time Before Roe. We’re Going Somewhere Worse, New Yorker, June 24, 2022. Also see, Laurin-Whitney Gottbrath and Ivan Saric, ‘Horrific”: World leaders react to end of Roe v. Wade in U.S., Axios, June 24, 2022; Sean Fine, Roe v. Wade’s fall sets a ‘frightening precedent’, retired Canadian Supreme Court justice says, Globe and Mail, June 24, 2022; The Supreme Court’s rejection of Roe will hurt the poorest most, The Economist, June 24, 2022.

[14] Philip Bump, Overturning Roe is unpopular – and viewed as largely political, Washington Post, June 27, 2022; Edward Keenan, Can the U.S. Supreme Court survive overturning Roe v. Wade?, Toronto Star, June 27, 2022..

[15] Kimberly Wehle, The Supreme Court’s Extreme Power Grab, The Atlantic, July 19, 2022.

[16] Madiba Dennie, Is Court Reform Possible?, Brennan Center for Justice, June 7, 2022.

[17] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018. Also see generally, Zack Beauchamp, Brett Kavanaugh and the Supreme Court’s looming legitimacy crisis, Vox, September 24, 2018.

[18] Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020; Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[19] Abigail Abrams, A Country Fractured, Time, July 15, 2022,

[20] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018; Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020:

“Unfortunately, the universal recognition of the merits of the rule of law has in no way been accompanied by a universally accepted definition. One can define the rule of law narrowly or broadly, sometimes referred to as “thin” (i.e. limited to how laws are made and applied, a purely narrow, formalistic, procedural instrument of government; moving along the continuum toward ‘rule by law’ where the law does not apply to everyone equitably and/or government may be considered above the law) and “thick” (i.e. including reference to fundamental rights and democracy, and that everyone in society is bound by the law, including the government). The “thick” conception of the rule of law includes both procedure and substance, with attention to normative standards of rights, fairness and equity. The “thin” conception of the rule of law is amenable to a broad range of societies and political systems. It has been suggested that a state such as the People’s Republic of China may come closest to “a rule by law system with thin rule of law characteristics”. In its present day meaning, the rule of law is often used as shorthand for the existence of good governance in a particular country, and in Western society “is seen as essential for economic and social development and as a necessary prerequisite for the existence of democratic mode of governments”.

The World Justice Project (“WJP”) ranks over 125 countries – utilizing four universal principles – to compile an overall Rule of Law Index ranking to serve as a quantitative tool that measures the rule of law in practice. The Index is subdivided into eight categories and 44 subcategories, covering such areas as constraints on government powers, absence of corruption, fundamental rights, civil justice, and criminal justice. Despite its profound importance for fair and functioning societies, the rule of law is notoriously difficult to define and measure, and in recognition of this the WJP’ Rule of Law Index captures adherence to the rule of law based on four universal principles derived from internationally accepted standards. According to the WJP, the rule of law is a system in which the following four universal principles are upheld:

Accountability: The government and its officials and agents as well as individuals and private entities are accountable under the law.

Just Laws: The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.

Open Government: The processes by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.”

[21] Gabriela Baczynska, Court ‘disease’ in Poland, Hungary could spread: judicial body chief, Reuters.com, May 31, 2018.

[22] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[23] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.

[24] Caroline Kelly, Ruth Bader Ginsburg: Senate exemplifies trend of sticking with ‘one’s own home crowd’, CNN, February 7, 2020.

[25] Joel Mathis, The rule of law is dead, The Week, February 12, 2020 – “The message to the federal workforce is clear: Mess with the president or his friends, and your career will suffer. Trump is like a bizarro world version of Diogenes: Instead of a ceaseless search to find the last honest man, he instead is doing everything he can to expel all traces of integrity and honesty from American governance.”).

[26] Tom Bingham, The Rule of Law, Allen Lane (UK), 2010; Dr. Munir Ahmad Mughal, A Review on Tom Bingham’s Book ‘The Rule of Law’, SSRN (ssrn.com), March 11, 2013.

[27] Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020.

[28] The Supreme Court’s rejection of Roe will hurt the poorest most, The Economist, June 24, 2022.

[29] Dana Milbank, The Supreme Court radicals’ new precedent: Maximum chaos, Washington Post, June 25, 2022.

[30] Erwin Chemerinsky, Ending Roe is a pure exercise of Republican power, wielded to reduce women’s freedom and equality, Los Angeles Times, June 24, 2022.

[31] Ja’han Jones, How SCOTUS could rev up the mass incarceration machine: The conservative-led Supreme Court is turning the country into a legal minefield, MSNBC.com, July 12, 2022.

[32] Abigail Abrams, A Country Fractured, Time, July 15, 2022,

[33] See generally, Ben Olinsky, The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy, Center for American Progress, June 13, 2022.

[34] David Moscrop, America’s social contract with its citizens lies in tatters. What happens next is for Americans to decide, Globe and Mail, June 28, 2022.

[35] Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998.

[36] Nathan Robinson, The Supreme Court Has Destroyed Its Legitimacy and There is no Reason to Respect It, Current Affairs, June 24, 2022. Also see, Molly Coleman and Tristin Brown, The Supreme Court’s Legitimacy Crisis: From Recusal Issues to Blatant Partisanship, Teen Vogue, June 16, 2022; Kelsey Reichmann, Will the Supreme Court survive the stench of overturning Roe?, Courthouse News Service, May 4, 2022; Jill Filipovic, It’s time to say it: the US supreme court has become an illegitimate institution, Guardian, June 25, 2022; Adam Serwer, The Constitution is Whatever the Right Wings Says It Is, The Atlantic, June 25, 2022; Christopher Wilson, Polling shows record-low confidence in Supreme Court, Yahoo News, June 23, 2022; Jason Vermes, Texas cities are directing police to not enforce state abortion laws. Will it work?, CBC, July 22, 2022.

[37] David Moscrop, Can democracy survive the coronavirus?, Maclean’s, April 1, 2020.

[38] Hans Petter Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack, Springer, 2015. Also see, Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century, Tim Duggan Books, 2017.

[39] Pankaj Mishra, The west’s self-proclaimed custodians of democracy failed to notice it rotting away, The Guardian, September 20, 2019.

[40] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[41] Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020.

[42] Molly Coleman and Tristin Brown, The Supreme Court’s Legitimacy Crisis: From Recusal Issues to Blatant Partisanship, Teen Vogue, June 16, 2022.

[43] Kelsey Reichmann, Will the Supreme Court survive the stench of overturning Roe?, Courthouse News Service, May 4, 2022.

[44] Lawrence Douglas, The US supreme court is turning the constitution into a suicide pact, Guardian, July 6, 2022.

[45] Nicholas Reed Langen, The Supreme Court’s Legitimacy Crisis is Here, Project Syndicate, May 4, 2022.

[46] Robin Abcarian, What kind of monsters would force a child to have a baby?, Los Angeles Times, July 10, 2022.

[47] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018. Also see, Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014.

[48] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018. Also see, Omar E. Garcia-Bolivar, Lack of Judicial Independence and Its Impact on Transnational and International Litigation, 18 Law & Bus. Rev. Am 29, 2012. Also see, for example: Robert Fife, Steven Chase, and Ian Bailey, Canada will stand firm on dispute resolution, media in NAFTA talks, PM says, Globe and Mail, September 4, 2018; Ryan Maloney, Trudeau Suggests Trump’s Behaviour Is Why Canada Needs Chapter 19, in NAFTA, Huffington Post, September 5, 2018; James McCarten, Trudeau: Canada Won’t Back Down on NAFTA Demands, Huffington Post, September 19, 2018: “Canadian negotiators remain unmoved by the recent rumblings on Capitol Hill and focused on getting a deal that’s in the country’s best economic interests. That includes an intact and effective dispute-resolution mechanism, which remains one of the key stumbling blocks …. “There’s not going to be an agreement where disputes are handled in the American courts. … “Having Colonel Sanders take care of the chickens — in other words, having all disputes handled in the U.S. courts — just doesn’t make any sense for Canadians.”); Rupert Cornwell, US Supreme Court on trial, Independent, June 20, 2015 (“The most damning criticism of the [U.S. Supreme] court is that it is too ideological, too political, that its members reflect the views of the president who appointed them.”).

[49] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), May 11, 2001; William Johnson, Ensuring supreme confidence in judicial appointments, Policy Options, May 1, 2001.

[50] Stephen Sedley, Judicial Independence is a fragile thing: politicians attacking the UK’s Supreme Court should be careful what they wish for, Financial Times, January 27, 2017; Hilarie Bass, The ABA’s role in protecting judicial independence, ABA Journal, May 1, 2018; Pablo Davis, Is the Judiciary a Fragile Fortress?, 47 University of Memphis Law Review 999, 2017; The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[51] See generally, Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[52] David Daley, Republicans have hijacked the US supreme court. It’s time to expand it, Guardian, June 27, 2022.

[53] Laurin-Whitney Gottbrath and Ivan Saric, ‘Horrific”: World leaders react to end of Roe v. Wade in U.S., Axios, June 24, 2022; Sean Fine, Roe v. Wade’s fall sets a ‘frightening precedent’, retired Canadian Supreme Court justice says, Globe and Mail, June 24, 2022; The Supreme Court’s rejection of Roe will hurt the poorest most, The Economist, June 24, 2022.

[54] Statement from the CBA President Stephen Rotstein on SCOTUS Decision in Dobbs, Canadian Bar Association (cba.org), June 24, 2022.

[55] See for example, Gwen Mathewson, Security of the Person, Equality and Abortion in Canada, University of Chicago Legal Forum, Vol. 1989, Issue 1, Article 12.

[56] Madiba Dennie, Is Court Reform Possible?, Brennan Center for Justice, June 7, 2022.

[57] See for example: Mark Townsend, Growing ‘culture of extremism’ among UK and European police forces, report warns, Guardian, July 10, 2022; Michael German, Hidden in Plain Sight: Racism, White Supremacy, and Far-Right Militancy in Law Enforcement, Brennan Center for Justice, August 27, 2020; Seth Jones, Catrina Doxsee, and Grace Hwang, The Military, Police, and the Rise of Terrorism in the United States, Center for Strategic & International Studies, April 12, 2021; Hassan Kanu, Prevalence of white supremacists in law enforcement demands drastic change, Reuters, May 12, 2022; Hon. Hohn McKay, Chair, Systemic Racism in Policing in Canada: Report of the Standing Committee on Public Safety and National Security, 43^rd Parliament, 2^nd Session, June 2021; Alex Boutilier, Public safety minister acknowledges threat of white supremacist infiltration to Canada’s police forces, Toronto Star, June 25, 2021; Dark Money and the Courts: The Right-Wing Takeover of the Judiciary, American Constitution Society, acslaw.org – referencing: Caroline Fredrickson and Lisa Graves, On Dark Money and the Right’s Judicial ‘Revival’, Law.com, May 31, 2019; Robert O’Harrow Jr and Shawn Boburg, A conservative activist’s behind-the-scenes campaign to remake the nation’s courts, Washington Post, May 21, 2019; Jamal Greene, Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s, Slate, May 27, 2019.

[58] Ja’han Jones, Self-immolating Supreme Court’s credibility spirals, polls finds, MSNBC, July 20, 2022; Lawrence Douglas, The US supreme court is turning the constitution into a suicide pact, Guardian, July 6, 2022. Also see, Fabio Bertoni (General Counsel, The New Yorker), Justice Neil Gorsuch’s Radical Reinterpretation of the First Amendment, New Yorker, July 20, 2022; Kara Voght and Tim Dickinson, SCOTUS Justices ‘Prayed With’ Her – Then Cited Her Bosses to End Roe, Rolling Stone, July 6, 2022; Claire Lampen, What Exactly Does SCOTUS Consider a Conflict of Interest?, The Cut, July 7, 2022.

[59] Lawrence Douglas, The US supreme court is turning the constitution into a suicide pact, Guardian, July 6, 2022. Also see, Fabio Bertoni (General Counsel, The New Yorker), Justice Neil Gorsuch’s Radical Reinterpretation of the First Amendment, New Yorker, July 20, 2022; Dana Milbank, The Supreme Court radicals’ new precedent: Maximum chaos, Washington Post, June 25, 2022.

[60] Ja’han Jones, Self-immolating Supreme Court’s credibility spirals, polls finds, MSNBC, July 20, 2022.

[61] Abigail Abrams, A Country Fractured, Time, July 15, 2022. See, Cari Sietstra and Wendy Sheldon, How to Do Fertility Control Like It’s 1865: For centuries, regulating your menses – and stopping a potential pregnancy – was legal under common law, Slate.com, July 18, 2022.

[62] Pema Levy, The Extreme Agenda of Anti-Abortion Politicians Is Already Coming True: They’re fighting to withhold life-saving care and trying to force child assault victims to give birth, Mother Jones, July 16, 2022; Solcyre Burga, How a 10-Year-Old Rape Victim Who Traveled for an Abortion Became Part of a Political Firestorm, Time Magazine, July 15, 2022.

[63] Pema Levy, The Extreme Agenda of Anti-Abortion Politicians Is Already Coming True: They’re fighting to withhold life-saving care and trying to force child assault victims to give birth, Mother Jones, July 16, 2022; Abigail Abrams, A Country Fractured, Time, July 15, 2022.

[64] Sean Fine, Roe v. Wade’s fall sets a ‘frightening precedent’, retired Canadian Supreme Court justice says, Globe and Mail, June 24, 2022.

[65] Dark Money and the Courts: The Right-Wing Takeover of the Judiciary, American Constitution Society, acslaw.org – referencing: Caroline Fredrickson and Lisa Graves, On Dark Money and the Right’s Judicial ‘Revival’, Law.com, May 31, 2019; Robert O’Harrow Jr and Shawn Boburg, A conservative activist’s behind-the-scenes campaign to remake the nation’s courts, Washington Post, May 21, 2019; Jamal Greene, Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s, Slate, May 27, 2019; Ben Olinsky, The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy, Center for American Progress, June 13, 2022.

[66] Dark Money and the Courts: The Right-Wing Takeover of the Judiciary, American Constitution Society, acslaw.org – referencing: Caroline Fredrickson and Lisa Graves, On Dark Money and the Right’s Judicial ‘Revival’, Law.com, May 31, 2019; Robert O’Harrow Jr and Shawn Boburg, A conservative activist’s behind-the-scenes campaign to remake the nation’s courts, Washington Post, May 21, 2019; Jamal Greene, Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s, Slate, May 27, 2019.

[67] Teagan Johnston, The far-right violence of overturning Roe v. Wade, Toronto Star, July 10, 2022.

[68] Michael German, Hidden in Plain Sight: Racism, White Supremacy, and Far-Right Militancy in Law Enforcement, Brennan Center for Justice, August 27, 2020.

[69] Michael Waldman, Originalism Run Amok at the Supreme Court, Brennan Center For Justice, June 28, 2022; Saul Cornell, New Originalism: A Constitutional Scam, Dissent Magazine, May 3, 2011; Garrett Epps, Constitutional Myth #1: The Right is ‘Originalist’, Everyone Else is ‘Idiotic’, Atlantic, May 25, 2011; Kirk Swearingen, ‘Originalism’ and other Supreme nonsense: How the right-wing justices rationalize mass murder: Antonin Scalia and his disciple Amy Coney Barrett have brought us to madness – and not just on guns and abortion, Salon, June 3, 2022; Eric Segall, Judicial originalism as myth, Vox, February 27, 2017; Whitley Kaufman, The Truth about Originalism, The Pluralist, University of Illinois Press, Vol. 9, No. 1, 2014; Eric Segall, Originalism as Faith, Cambridge University Press, 2018 (references how originalism may be used by judges as a pretext for reaching politically desirable results).

[70] Erin Aubry Kaplan, Clarence Thomas earns our scorn, Los Angeles Times, July 3, 2022.

[71] Daniel Santoro, The Unprincipled Use of Originalism and Section 24(2) of the Charter, Alberta Law Review, Vol. 45, No. 1, 2007. Also see, Jeffrey Goldsworthy and Hon. Grant Huscroft, Originalism in Australia and Canada: Why the Divergence (Chapter 8), In Richard Albert and David Cameron (eds.), Canada in the World: Comparative Perspectives on the Canadian Constitution, Cambridge University Press, 2018; Michael Waldman, Originalism Run Amok at the Supreme Court, Brennan Center For Justice, June 28, 2022; Saul Cornell, New Originalism: A Constitutional Scam, Dissent Magazine, May 3, 2011; Garrett Epps, Constitutional Myth #1: The Right is ‘Originalist’, Everyone Else is ‘Idiotic’, Atlantic, May 25, 2011; Kirk Swearingen, ‘Originalism’ and other Supreme nonsense: How the right-wing justices rationalize mass murder: Antonin Scalia and his disciple Amy Coney Barrett have brought us to madness – and not just on guns and abortion, Salon, June 3, 2022; Eric Segall, Judicial originalism as myth, Vox, February 27, 2017; Whitley Kaufman, The Truth about Originalism, The Pluralist, University of Illinois Press, Vol. 9, No. 1, 2014; Eric Segall, Originalism as Faith, Cambridge University Press, 2018 (references how originalism may be used by judges as a pretext for reaching politically desirable results).

[72] Erwin Chemerinsky, Ending Roe is a pure exercise of Republican power, wielded to reduce women’s freedom and equality, Los Angeles Times, June 24, 2022.

[73] Rebecca Cohen, Madison Hall, and Oma Seddiq, Justice Thomas says the Supreme Court should ‘reconsider’ rulings that protect access to contraception and same-sex marriage as the court overturns Roe v. Wade, Insider, June 24, 2022.

[74] Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020; Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[75] Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020; Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[76] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.

[77] Brend Dowdall, The Chief Justice speaks out on judicial independence: Richard Wagner addressed concerns about threats to the rule of law at the CBA’s annual general meeting, National Magazine, February 20, 2020 (“We live in troubled times. … The rule of law and judicial independence are under threat around the world. Just look at what is happening South of our border [in the United States]”).

[78] Ben Olinsky, The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy, Center for American Progress, June 13, 2022.

[79] Ben Olinsky, The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy, Center for American Progress, June 13, 2022.

[80] Ben Olinsky, The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy, Center for American Progress, June 13, 2022.

[81] Ben Olinsky, The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy, Center for American Progress, June 13, 2022.

[82] Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020.

[83] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[84] The Role of Judges in Modern Society: Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, The Fourth Worldwide Common Law Judiciary Conference, Supreme Court of Canada scc-csc.ca, May 5, 2001.

[85] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[86] The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[87] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018; Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020.

[88] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018.

[89] Jonathan Chait, The Rule of Law is Crumbling further each day Under Trump, New York Magazine, June 11, 2018. Also see, Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social inequality in the 21^st century, Sigurdson Post, April 26, 2020; Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[90] Lawrence Douglas, The US supreme court is turning the constitution into a suicide pact, Guardian, July 6, 2022.

[91] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.

[92] Tom Bingham, The Rule of Law, Penguin Random House, 2011. Also see, Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.

[93] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.

[94] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.