Do We Even Believe In “Justice” Anymore?

The 2021 U.S. Supreme Court (official photo)

The disgraceful spectacle of this week’s Supreme Court arguments should shock any Americans who believe in our founding principles. In Dobbs v. Jackson Women's Health Organization, the Court’s conservative majority signalled the likelihood that it will give constitutional imprimatur to America’s most restrictive abortion regulations in fifty years. The ruling’s date remains unclear, but its contents are a foregone conclusion.

I was struck by something Justice Sonia Sotomayor said, challenging not the litigants, but fellow judges: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.” Sotomayor is exactly right: anti-abortion activists pushed this case now specifically because recent partisan tilts have made a formerly unthinkable stare decisis change possible.

This got me thinking: what, exactly, constitutes “justice”? How do we know a just and honorable outcome when we see it? America’s entire precept of representative democracy begins with the assumption that, given the opportunity to debate publicly, sufficiently large groups will reach a consensus that everyone agrees is fair. But two-and-a-half centuries of American law provide enough evidence to call this precept into question.

NYU psychology professor Jonathan Haidt writes that, while Western humans like to believe ourselves rational beings who reach moral conclusions through exhaustive reasoning, this is an illusion. We reach conclusions more-or-less instantaneously, then construct reasoning retrospectively, to justify what we already believe. Frequently, our definition of “fairness” and “justice” reflects not some external agreed-upon precept, but whatever justifies our already-held beliefs.

This runs counter to America’s founding principles. “We hold these truths to be self-evident” assumes that not only does truth exist externally, but it’s visible to anyone watching with dispassionate eyes. This, sadly, just isn’t true. The longer I watch politics and current events, the more glaring it becomes that most legislators and jurists enter arguments with a foreordained notion of truth, a notion entirely consistent with their partisan alignments.

Superficially, it seems obvious to me that “justice” must involve defending the poor, minorities, and the disfranchised against the whimsy of the majority. Any system where the majority runs unchecked will inevitably result in the injustices embodied in tyrants like George Wallace and Bull Connor. Obviously. I enter any debate about justice with this supposition already prepared, ready to deploy against any challengers.

The U.S. Supreme Court building

Yet I increasingly realize this definition is vulnerable. If the minority needs defended, than minority status becomes treasured: consider those White evangelical Christians who believe themselves oppressed because they’re not permitted to exclude Black people and LGBTQIA+ with impunity. But it goes further. What constitutes “oppressed enough”? Consider Jussie Smollett, who, though Black and gay, felt he needed a violent backstory to justify his financial success.

Therefore my definition of “justice” is as incomplete as anybody else’s. Though I may reflexively rush to defend minorities, I lack a sufficient idea of what constitutes a “minority,” and also what constitutes “defense.” I expect the nuances to work themselves out in practice, leading inevitably to the question: do they? Recent American history suggests they do not. My definition of “justice” is as insufficient as anybody else’s, apparently.

Watching this week’s arguments, I felt queasy about the almost inexorable outcome. Though I dislike the idea of abortion as birth control, I recognize that it's sometimes the best alternative. The women most likely to need abortion are disproportionately poor, young, poor, and not White: a massive trifecta of disfranchised groups. These, to me, are the groups most immediately in need of defense by those who call themselves “Justices.”

The very precept of the Supreme Court holds that justice derives, not from individual principles, but public deliberation. We can argue and dispute our way to knowing the truth. We White Americans like to believe the Supreme Court’s oracular wisdom, justified by decisions like Brown v. BOE. But those decisions are statistical outliers; historically, the Court more often defends existing power structures than challenges them.

Our Constitution was written by people who believed that argument and informed dispute could uncover the truth. But they didn’t represent America generally; the transcripts of the 1789 Constitutional Convention reveal the words and opinions of an entirely White, well-off, male country club, whose members disagreed mainly on regional grounds. That’s why the Constitution is so short, at only 7,591 words (including amendments), because it’s a compromise document.

Justice Sotomayor is right, this stink will never wash off. But not because anything changed this week; only because the truth is now visible.