The Supreme Court Is Gaslighting Us All

At the close of one of the most consequential and least constitutional terms in the Supreme Court’s history, it’s hard to ignore one particularly offensive trend: the right-wing justices’ repeated and patronizing attempts to minimize the importance of their unprecedented decisions.

There’s nothing to see here, they regularly seem to say; everyone who is upset at their decisions is being hysterical and should just calm down. Take a few recent examples:

• In his majority opinion in the case about presidential immunity, Chief Justice John Roberts mocked the three liberal dissenters for striking “a tone of chilling doom that is wholly disproportionate to what the court actually does today.” (Reality check: The immunity ruling — which gave presidents carte blanche to break most criminal laws when carrying out their official duties — is not grounded in any clause of the Constitution. It went far beyond what even the most pessimistic court observers expected; the dissenters, if anything, responded with restraint.)

• During oral arguments in a case that pitted Idaho’s near-total abortion ban against the federally guaranteed right of a woman to end her pregnancy if necessary to stabilize a dire medical crisis, Justice Samuel Alito dismissed the government’s concerns. “Nobody’s suggesting that the woman is not an individual and she doesn’t — she doesn’t deserve stabilization,” the justice who wrote the opinion striking down Roe v. Wade said with his trademark irritation. “Nobody’s suggesting that.” (Reality check: That is precisely what Idaho was suggesting, by arguing that federal law doesn’t pre-empt the state ban.)

• Or take the chief justice again, writing for the court in upholding a federal law that prohibits domestic abusers from possessing guns. A federal appeals court had struck down the law as unconstitutional. “Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote, explaining why the lower court had been wrong. “These precedents were not meant to suggest a law trapped in amber.” (Reality check: The lower court was following the letter of a Supreme Court ruling from two years ago, which held that any gun law without an almost exact analog from the founding era — like laws that apply to domestic abusers — is unconstitutional.)

Behavior like this has a name: gaslighting, a form of psychological manipulation that involves making people doubt their own, accurate perception of reality. If the term has gotten a workout in recent years, that’s because a lot of people are engaging in it. The right-wing justices have become masters of the form, telling the American people again and again not to believe what they see with their own eyes.

“The court is trying to distance itself from the monsters it created,” Mary Anne Franks, a law professor at George Washington University and the author of “The Cult of the Constitution,” told me. “They’re trying to say, ‘We don’t know where you got these crazy ideas from!’ But of course we do know where they got them from.”

In the latest gun case, United States v. Rahimi, the crazy ideas came straight from the source: the Supreme Court’s jaw-dropping 2022 decision in New York State Rifle & Pistol Association v. Bruen. For a gun law to be compatible with the Second Amendment, the decision said, the government “must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.” In other words, if the American founders didn’t pass a specific gun law in the 18th century, then we in the 21st century can’t either. Applying that reasoning, the U.S. Court of Appeals for the Fifth Circuit determined that there were no founding-era laws keeping guns from domestic abusers, and so today’s law doing so could not stand.

The Bruen decision was written by Justice Clarence Thomas and signed by all five of his conservative colleagues. But when the Fifth Circuit’s decision protecting the gun rights of domestic abusers came before the court, the justices blinked. Eight of them, including the court’s three liberals, agreed that such laws are well within the federal government’s authority to enact. Only Justice Thomas held his ground and insisted on finding an exact historical analog. Give him credit for consistency at least.

If you find it hard to square the command in the Bruen case with the result in the Rahimi case, you’re not alone. Lower federal courts across the country have been flailing for two years as judges play amateur historians and try to figure out whether Americans two centuries ago passed laws that are similar enough to those today. In her concurrence, Justice Ketanji Brown Jackson said what the court’s majority would not.