In alignment with other legal scholarship, a Slate article concludes that our USSC has lost its legitimacy due to its partisanship and blatant double standards. It now usually favors Republican authoritarian causes and policies while disfavoring opposing positions. The law has been degraded into a means to achieve authoritarian and kleptocratic ends at the expense of democracy and the public interest. Special interests that benefit love it, while we get screwed, abused and ripped off.
This moral rot at the USSC has been apparent to some for a few years, but this thinking now seems to be mainstream among legal scholars. It's about damn time these experts got woke. Probably too late.
The Slate article, A neutral Supreme Court principle applies only to Democratic presidents, focuses on the USSC's recent use of "neutral" legal doctrines. There is nothing neutral about it. It is partisan. The court's made-up out of thin air "major-questions doctrine" and new interpretations of standing, are applied inconsistently. The net effect is to the detriment of Democratic presidents while Republican administrations receive far more favorable treatment. The article points out that the Court's self-professed neutrality is highly malleable or, "squishy." The USSC uses these legal tricks and illusions to justify predetermined MAGA outcomes. That directly contradicts the legitimacy of the Court's claim to impartiality.
A major problem here is that for humans it is impossible to be neutral. Legal scholars have debated whether "neutral principles" are even possible or whether they mostly serve to mask ideological preferences. This Supreme Court with six MAGA judges often fails to apply its reasoning fairly across similar cases, especially in politically charged contexts.
Authoritarian MAGA legal scholars are using "neutrality" as an excuse to hijack actual neutrality for authoritarian and kleptocratic ends. With today's USSC, objectivity has been replaced by partisan MAGA and special interest power.
THE HISTORY OF NEUTRALITY
The concept of fake neutrality in constitutional law was not invented by MAGA authoritarian legal scholars. Fake neutrality in constitutional law was discovered over time by pro-democracy legal scholars. Buried deep in American government, law and commerce was a lot of authoritarianism. It was heavily shielded by claims of neutrality and a lot of secrecy and deceit. The earliest pro-democracy legal movement began with the Legal Realism movement of 1881-1940. The movement was launched by Oliver Wendell Holmes Jr.'s 1881 observation that "the life of the law has not been logic; it has been experience."
Attacks on the neutrality concept was provoked by the rise of Legal Formalism (LF) in the 1860s and 1870s. LF was fundamentally grounded in deceptive concepts like neutrality to hide or deflect from the authoritarianism, corruption (kleptocracy) and elitism that was inherent in the power structures, politics and commerce of the time. LF was a sophisticated form of ideological propaganda warfare and disguise to serve powerful special interests during the Gilded Age and later. It was anti-democratic. LF was the dominant theory of legal thought in the United States from the 1870s until the 1920s, during the Gilded Age when extreme economic inequality and industrial capitalism created unprecedented concentrations of wealth and power.
The bottom line: The modern authoritarian MAGA wealth and power movement clearly wants a modern times return to those much better than merely good old days for the elites. They lie about and hide their intentions behind fake neutrality, made-up doctrines and crackpot reasoning to achieve authoritarian and kleptocratic ends. MAGA's rule of law amounts to the rule of the dictator or big business or Christian nationalist elites. It really is just that simple.
For people interested, the entire Q&A series with Pxy is at this link.
FWIW, a post about American Legal Realism is at this link. An Introduction To Legal Reasoning (1949) was the book that first made me aware in 2018 of the origins of huge, intractable differences in legal reasoning between authoritarian MAGA and pro-democracy mindsets. This really is all about democracy vs. authoritarianism.
