When Supreme Court decisions have evil consequences

I am sure Supreme Court Justice Samuel Alito perceives himself to be a moral person. Indeed, he sees his religious sect-specific morality as so important that he has dedicated his career to changing long-held legal precedent in the nation’s enforcement of societal order. But there is no doubt that Alito’s direct actions have spawned evil consequences from his rulings on guns and women’s reproductive choice. With great power (and Alito is clearly currently at “peak power,” after years of court mediocrity) comes moral culpability when your actions cause harm.

State lines are historical vestiges with some rigid legal distinctions, but in a modern nation they are often dangerous fictions. The line between Kansas and Missouri in Kansas City, for instance, runs down the middle of a city street, but a woman’s fundamental rights may well be different on opposite sides of that street. Between other states the line is a narrow river, easily crossed by weapons traffickers, defeating efforts at reducing gun deaths in better-run states.

Missouri-Kansas border

Refugees fleeing Kansas at an unsecured border crossing with Missouri.

Bad ideology-driven decisions on firearm restrictions by the nation’s highest court place outdated sanctity on these pretend borders, fostering civil disorder and, yes, culpable murder by distant judges in guarded fortresses. When gun laws differ between states, the “real world” works by the lowest common denominator, and in this country, several states continually vie for that bottom legal sludge pit when it comes to guns. As a result, people die horrible deaths directly because of the decisions of these judges, most recently the murders of seven Fourth of July parade watchers in Illinois who must die in order to preserve lowest-denominator state gun laws allowing “high-lethality weapons” to flood the streets nationwide.

The same thing is happening as we watch increased legal impediments to basic women’s healthcare. With the destruction of the fragile Roe v. Wade ruling of over 50 years standing, the bottom-feeder politicians are rushing to see how barbaric they can drive their state laws. In a recent case, a ten-year-old pregnant rape victim had to be driven from Ohio to Indiana, because today Ohio is forcing little girls to bear their rapists’ babies. And soon Indiana will likely close that option with its own barbarisms. Because of bad judicial rulings, the entire nation now bears the weight of effectively living in Mississippi, a state that has never learned how to perform the basic functions of government for all its citizens. Kansas, Missouri, Iowa, Ohio, and Florida are now rushing to vie for State #50 on the rankings for key issues regarding public health and human rights.

Moral consequentialism and the Second Amendment

Moral philosophers have long contrasted two classic approaches to ethical decision-making — deontology and consequentialism. Deontology, based on top-down-defined rules and duties, often wins the day because it seems so much easier to articulate and enforce. The Ten Commandments and the earlier ancient Babylonian Code of Hammurabi are classic deontological moral rule-sets. So is, in many respects, the Bill of Rights, especially the Second Amendment.

However, you can’t have rules without exceptions, and so how you parse those rules means a lot. The Supreme Court has long focused on the ending phrase of that Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed,” while ignoring the preceding qualifier, “A well regulated Militia, being necessary to the security of a free State…”  And if you probe American history, that “well regulated militia” part clearly has its roots in early mandatory settler slave-capture and Indian-hunting patrols, and not armed resistance to your own government as NRA supporters claim [see Note 1]. Our “State” is clearly anything but secure, and the courts are primarily to blame here by fostering division and confusion by enshrining 18th-century thinking about hunting down escaped slaves.

How you handle the exceptions determines the consequences of your rule, and as I like to say, “the balls and strikes” the justices pretend to call are usually in a game between the Boston Red Sox and a Little League team. Or in this case, the gun manufacturers versus grade school children in Uvalde, Texas. The Little League loses.

My Jesuit ethics professors rooted the several moral theories of consequentialism in the realm of the Telos, seeking some desired “good end” as the primary goal of moral decision-making. Different forms of consequentialism focus on such utilitarian outcomes as “the greatest good for the greatest number.” Other variations put the emphasis on the best outcome, regardless of consequences. But the “ends” of recent Supreme Court decisions on guns have meant more firearm murder and suicide. Already the new ruling on women’s reproductive health is harming women, especially those who aren’t in the rich parishes attended by Supreme Court justices.

Ethicist Richard Niebuhr once noted that, when driving a car, neither a knowledge of the rules of the road nor a knowledge of your destination is alone sufficient to get you there. In reality, you need both rules and ends (and more) to get where you want to go. Here’s the more:

Justice and logic

There are other bases for moral decision-making besides rules and consequences. Twentieth-century moral philosopher John Rawls (1921–2002) posited that the concept of justice must lie at the heart of every moral decision, as did a certain first-century Jewish prophet, who answered the pregnant question, “Who is my neighbor?” (and it wasn’t the religion-on-his-sleeve guy). At some point our wisest leaders much choose who is more protected and who needs to sit in a corner for a while. Based on their titles, one would expect more of a sense of “Justice” from members of the Supreme Court over the issues of pregnant children and poor women, or the mass killing of schoolchildren and parade watchers by incels with guns.

Some Sesame Street-level “One of these things is not like the other” logic [see Note 2] is also reasonably expected from Supreme Court justices. The most recent ruling invalidating New York’s heavy concealed carry regulation was accompanied by a bizarre Alito-written concurrence containing the logic that, because the recent mass shooter in Buffalo used a high-lethality weapon (AR-15 style) purchased very recently, the New York concealed carry laws for pocket-sized firearms were thus ineffectual and should be struck down.

I have come to the realization that things will change only when a significant proportion of the populace and its moral leaders start using terms like “evil” to tag the politicians, dominionist religious leaders, and other enablers contributing to these consequences. For instance, several European countries, much less “church-going” than America, significantly reduced drunk driving fatalities by targeted moral condemnation and heavy legal penalties on those who drive while under the influence. Finland even makes sure that the rich do not escape justice by fining them according to their wealth.

We have significantly reduced tobacco consumption in several demographic groups in the United States through a long campaign of “moral naming and shaming” of tobacco and its corporate marketers. Perhaps this is our last best hope at reducing the influence of firearms mayhem and the trampling of women’s rights by one of the two dominant political parties. Post the pictures of the enablers and make them confront their own guilt. Let me start:

Samuel Alito


Notes:

  1. Author Ron Chernow, in his award-winning biography of Alexander Hamilton, documents one of the first known uses of the controversial phrase “well-regulated militia” in a letter from Hamilton’s birthplace in the Caribbean. While there was slavery in North America from 1619, the plantation system got its start much earlier in the Caribbean and moved to America’s South from there.

    Violence was commonplace in Nevis, as in all of the slave-ridden sugar islands. The eight thousand captive blacks easily dwarfed in number the one thousand whites, “a disproportion,” remarked one visitor, “which necessarily converts all such white men as are not exempted by age and decrepitude into a well-regulated militia.” (Ron Chernow, Alexander Hamilton, p. 19)

  2. “One of these things is not like the other”:

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2 thoughts on “When Supreme Court decisions have evil consequences

  1. Pingback: Separating the ethic from the dogma – When God Plays Dice

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