Our Rapidly Disappearing Supreme Court

Daylin Leach
7 min readSep 21


In 1832 the US Supreme Court heard a case called Worcester v. Georgia. And no, despite how I look, I can promise you I wasn’t there. It turns out I had a dental appointment that day.

The case dealt with the sovereignty of the Cherokee Indians and their rights against federal government. The Court ruled in favor of the Cherokee nation. However, President Andrew Jackson ignored the ruling, famously saying “{Chief Justice} John Marshall has made his decision. Now let him enforce it”.

The point President Jackson was making was that the Supreme Court has no inherent enforcement powers, and he wasn’t wrong. They have no army. They have no navy. They have no corp of ninjas, although I’m told three of them are ninjas themselves (I’m looking at you Sonia!). The Court simply issues opinions which it relies on the other branches of the federal government and the various branches of state governments to acknowledge, recognize, adhere to and enforce.

This reliance, like reliance on a lot of things, is largely based on intangibles such as credibility and legitimacy.

It’s like money. Green paper has no inherent value. Dollar bills only get you stuff because we’ve all agreed that we’ll accept it. And for the most part, since Andrew Jackson left the White House to form a ska band and sell insurance (my history teacher wasn’t “the best”) we as a nation have pretty much all agreed that the Supreme Court was legit and, on matters of law, what it says goes.

Thus, when in 1954 the Court said that our nation’s schools had to integrate, President Eisenhower sent troops down to Little Rock, Arkansas to make sure that happened. And when, in 1973, the Court said that a woman had a fundamental right to reproductive freedom, abortion became legal in all fifty states. And when, in 1957, the Court said that section 2 of the Railroad and Telegraph Act did not convey mineral rights to railroads that encroached on public lands, the people of the United States said: “uh…OK…Not sure what that means…but whatever”. And it became the law of the land.

This widely perceived legitimacy is the key to getting people to accept Supreme Court decisions they don’t like. And for decades the Court conducted itself in ways that reinforced and perpetuated that legitimacy. Polls showed that even when a particular decision of the Court was unpopular, the Court itself remained a revered institution.

I revered the Court so much that my wife and I named our first born child after my all-time favorite Supreme Court Justice. And Baby Scalia was adorable!

KIDDING!! I’m kidding. We named our daughter Brennan. And when our son came along I wanted to continue the tradition and name him Marshall (after Thurgood, not John). But my wife felt that people would think we were “crazy” and “nuts” and “wack-jobs” and “brainsick” and “loopy nuts” and “flapdoodles” and… at this point I told Jen that I got the idea, and we went with Justin.

But the thing about credibility is that it’s fragile. One day everyone accepts something, and the next day it can all come crashing down. When that happened with German money in the early 1930s, their money became essentially worthless, and people needed to cart around wheelbarrows of cash to afford a loaf of bread. Although, apparently the Germans could all afford wheelbarrows somehow.

Recently the Justices of the current Supreme Court, individually and collectively, have embarked on a series of actions that have severely undermined their legitimacy in the eyes of the public and the other branches of government.

To begin with, there are the personal scandals. We have Justices refusing to recuse themselves from cases where they have clear conflicts of interest, with Justice Alito even going so far as to taunt those who were concerned about an obvious conflict he had.

Then when it came to light that Justice Thomas was treating the Supreme Court as his personal fundraising firm, Alito went so far as to say “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” In other words “we are completely above the law and nobody can touch us”.

Justice Thomas seems to share Justice Alito’s indifference to all basic notions of decorum. He refused to recuse himself in some of the 2020 election cases that his wife was a deeply involved with. He then was the lone vote to support his wife’s position. The Thomas’s reassured us however that “we don’t talk about work”, which raises the question of what they do talk about. My wife and I sometimes talk about my flaws. Maybe the Thomas’s talk about those too.

Beyond personal scandals, the Court has even been doing its basic job in ways that undermine its credibility. They have been making unprecedented use of their “Shadow Docket”. For those who don’t know, the Supreme Court’s shadow docket is when the court issues emergency orders on big, consequential issues, but without giving the litigants the opportunity to brief or argue the case, and without releasing an opinion explaining their reasoning. It’s a way to change the nation’s laws in a whole host of areas without the public at large noticing. Seems legit!

And we can’t forget the actual substance of their rulings. Thanks to Mitch McConnell and Donald Trump, the Court is now largely populated with aggressive and ambitious extreme right-wingers. Obviously, everyone well knows the havoc brought upon the nation by Dobbs, where the Court, for the first time in its history actually took away a recognized Constitutional right.

That was bad enough. But in his concurring opinion, Justice Thomas also took the astonishing step of inviting challenges to other basic rights. Marriage, contraception, being gay at all, “step right up and we’ll get rid of those too!” And it’s not just privacy rights. The Court has assertively and dramatically gutted the law in other areas, such as separation of church and state, the environment, worker’s rights, voting rights, affirmative action, etc.

With these steps, the Court is no longer even pretending to be a resolver of disputes that organically burble up to them. They are a political branch with an agenda. But unlike the branches that were intended to be political by the founders, the Supreme Court is not elected, and according to Justice Alito, not even regulatable.

They are increasingly like the Supreme Council in Iran. Iran has an elected government. But that government can’t do anything without the permission of a council of mullahs who can overrule any decision and implement its own agenda at will. Nice work if you can get it.

All of this is happening at breakneck speed. It is literally destroying any claim to legitimacy the Court has on an almost daily basis.

Eventually, when enough soil has eroded in a rainstorm, a house collapses into a river. This is a human tragedy, but makes for some great YouTube videos! And when enough credibility has eroded, the Court’s acceptance as a fair arbiter of disputes also crashes into the river. And that looks like a lot of things, but mostly, people and institutions stop listening to the Court and they stop deferring to its judgements.

This is no longer theoretical. It is no longer something that might happen in the future. It is happening now. In one of 2023’s few reasonable opinions, the court in Allen v. Milligan said that Alabama’s gerrymandered congressional districts violated the Voting Rights Act by disenfranchising black voters (No! Not Alabama!?!?). The Court, ruling 5–4, ordered Alabama to draw new maps which included another black-majority congressional district. And Alabama told the Supreme Court, “Right. Fuck off.”

If you are like me (and who isn’t?) you’ve noticed the irony that a right-wing Supreme Court faces it’s first blatant disregard from a right-wing state. But it really shouldn’t be too surprising. The right now expects to win at the Court. Every time. And when they don’t, they aren’t having it.

If this was a more evenly divided Court, Alabama probably would have complied. But as it is, they’re going back to the Supreme Court and telling them to get it right this time. There is even some reporting that they have intelligence suggesting that Kavanaugh is prepared to change his vote. I don’t know if that’s true, but if the Court backs down in the face of a refusal to follow it’s orders, that will further abrade what’s left of the respect the Court needs to function.

This can play out in a number of ways. The Supreme Court sets broad rules, but those are carried out by lower courts who issue specific orders compelling people to do specific things. They could just write order inconsistent with the Supreme Court’s ruling, knowing that the Supremes can’t hear every appeal or overrule every order.

Further, more entities might just follow the Alabama example. President Nixon was forced to resign when the Supreme Court ordered him to turn over the incriminating tapes during Watergate. Does anyone think that a re-elected President Trump would follow any court order he didn’t like?

Eventually, if nobody’s following the Supreme Court’s orders, they’ll look increasingly silly issuing them. It’s like if I started issuing orders requiring people to mow my lawn. Very few people would notice, and my lawn would probably go unmowed.

As this happened, the Court would fade into irrelevance. This would also be a human tragedy, and the YouTube videos would suck. A vigorous, trustworthy, ethical, independent judiciary is an absolute prerequisite to a vibrant democracy, and the only way to protect the rights of political minorities. As our Supreme Court shrinks, our democracy withers and eventually dies. But as we know, not everybody is rooting for democracy to succeed.



Daylin Leach

Long-time state House and Senate member, author of PA’s Medical Marijuana law, also creator of “shit-gibbon!” Comedian, professor, father of 2 awesome children!