An ancient Chinese legend tells of Nian, a fierce beast that emerged from the sea on the last day of the lunar year, hungry for people and livestock. Similar myths appear in other cultures. Japanese myth features Yamata no Orochi, an eight-headed dragon that surfaced each year to demand a sacrifice of one of the daughters of two earthly deities. And King Minos of Greek legend demanded an annual tribute of seven young men and seven young women.
This idea of an annual terror, lurking in the recesses of daily existence, is not something I felt for most of my life. But as a legal scholar who closely follows the U.S. Supreme Court, I am no longer so sanguine.
I have been thinking of Nian in particular because the Chinese lunar year usually begins in late January or early February, around the same time SCOTUS begins issuing decisions. Those releases begin as a whisper and build in a deafening crescendo that ends on June 30 or (like this year) July 1. The Supreme Court’s decisions, much like Nian’s arrival, are cyclical and are now agonizingly predictable in their outcomes.
According to the Chinese myth, villagers would flee their coastal communities when the new year approached, hurrying off to the nearby mountains to avoid the beast. While I don’t have mountains to seek haven in when SCOTUS unleashes its decisions, I practice rhythmic breathing and tell myself that karma will surely catch up with Mitch McConnell, in his next life, for his theft of two seats on the Court while serving as the Senate Majority Leader. Would it be too on-the-nose, I ask myself, if he came back as a tortoise?
When I began my career as a legal scholar, I approached each SCOTUS term with nominal trepidation. I viewed the Court’s steady release of its opinions as just an interesting season of legal analyses. Whether I found myself more in agreement with the majority or the dissent, I appreciated and learned from the Justices’ reasoning. Back in those days, the Federalist Society and Leonard Leo had not yet begun mass producing their distinctive brand of pre-fabricated right-wing politicians in robes.
Alexander Hamilton viewed the courts as the “least dangerous” branch of the federal government because, without power of the purse and no army, it could not directly enforce its decisions. But we learned this term that the Supreme Court could upend the ability of Congress to pass functioning laws and establish a king who is free to commit crimes.
In my field of education law, the Court has deflated the establishment clause and supercharged the free exercise clause, leaving us to legitimately wonder whether a system of district-run public schools with no religious proselytizing will survive into the next generation. The Court has already forced religious private schools onto Maine’s taxpayers, and it’s only an appeal or two away from forcing states to allow those schools to engage in faith-motivated bigotry.
As terrifying as the monster was, Nian did have a weakness—it was scared away by the color red, firecrackers, and bright lights. None of those, alas, are likely to work on Justices shielded by a combination of marble, billionaires, and shocking indifference to their rapidly crumbling institutional legitimacy.
Perhaps installing term limits, such as eighteen-year terms of active service for each Justice, is the best way to tame SCOTUS. Or maybe adding seats to the Court, or implementing congressional oversight and a meaningful and enforceable ethics code would do the trick.
In her dissent in the Trump immunity case, Justice Ketanji Brown Jackson eschewed the usual sign-off of “I respectfully dissent,” opting instead for, “because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.” Justice Sonia Sotomayor similarly omitted the often-used “respectfully,” writing, “With fear for our democracy, I dissent.”
From the outset, the U.S. experiment with a democratic republic was much more fragile than we were taught in school. The U.S. Constitution, we were told, establishes three equal branches of government, ingeniously creating a system of checks and balances. That’s a comforting thought, but only until Nian emerges again next year.