primus inter pares?

Can SCOTUS summarily and unilaterally revise the U.S. Constitution?
  

   

The answer appears to be "yes" these days.

There’s more than one way to skin a Constitution. Here are two: a court might base a decision on the original intention, meaning, and public understanding, the “history and tradition,” of a constitutional provision, or it might base a decision on a consideration of the consequences. Ordinarily, a judge might apply both these and other methods, but a strict originalist might argue that the jurisprudence of originalism is fundamentally opposed to the jurisprudence of consequentialism—that it’s best to heed the past and damn the consequences. During oral arguments at the Supreme Court in Dobbs v. Jackson Women’s Health Organization, for instance, Justice Samuel Alito asked about origins (“Can it be said that the right to abortion is deeply rooted in the history and traditions of the American people?”), and Justice Sonia Sotomayor inquired after consequences (“When does the life of a woman and putting her at risk enter the calculus?”). Alito wrote the majority opinion, declaring that no right to an abortion can be found in the Constitution’s history and tradition, and that therefore “the Fourteenth Amendment does not protect the right to an abortion.” Sotomayor joined a dissent that denounced “the majority’s refusal even to consider the life-altering consequences” of its decision.

This term, the tables turned. In Trump v. Anderson, the Court agreed to review a decision by the Colorado Supreme Court to strike the former President’s name from that state’s Republican primary ballot. That court had found that Donald Trump, owing to his role in the events of January 6th, had been disqualified under Section 3 of the Fourteenth Amendment, which prohibits people who have sworn an oath to the Constitution and then engaged in an insurrection against it from holding office. Maine and Illinois also determined that Trump had disqualified himself.

There are strong arguments against disqualifying Trump, but none involve the historical record: the evidence of history supported affirming the Colorado Supreme Court’s decision. (I and the historians David Blight, Drew Gilpin Faust, and John Fabian Witt made this argument in an amicus brief.) During oral arguments, Justice Sotomayor asked about origins: “History proves a lot to me.” Justice Alito worried about outcomes: “The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe.” So did Chief Justice John Roberts, who asked Jason Murray, the lawyer representing Colorado voters, what he’d do with what “would seem to me to be plain consequences of your position?” Alito asked Murray “to grapple with what some people have seen as the consequences of the argument that you’re advancing.” Posing one hypothetical after another, Alito asked, “Then what would we do?”…

If the Court is now interested in consequentialist arguments, here’s one: in the past quarter century, more than three hundred thousand American children have experienced armed civilians attacking their schools. Last year, there were six hundred and fifty-six mass shootings in the United States. Four out of five murders and more than half of all suicides in this country involve a gun. Gun ownership is rising, and so is political violence. For nearly a century, beginning with the earliest public-opinion surveys, Americans have consistently supported safety measures and curbs on gun ownership. Since 2008, the Court has thwarted them…

Stay tuned. apropos, See my March 5th post on the topic.

PER CURIOUS PER CURIAM. Did SCOTUS just summarily amend the Constitution, via 5 votes?

I refer us all back to Article V. It specifies but two methods of amending. Inclusive.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

See also "The Shadow Docket." 

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