Commentary: A fence around the court a painful metaphor

Our courts are meant to protect our justice and our liberty. Instead, we’ve had to wrap them in metal.

By Robin Givhan / The Washington Post

The Supreme Court has shut itself off from the public.

At a time when the country needs this judiciary of last resort more than ever, it has been surrounded with black, non-scalable fencing from which hang signs announcing that the area is closed. Just above the building’s stately pillars on its east side, etched into the stone, one can read the words “Justice The Guardian Of Liberty.” But for now, both justice and liberty are inaccessible by order of the marshal. And just now, it’s unclear precisely what the court is guarding other than its own flank in the face of a disconsolate populace.

The draft opinion that would overturn Roe v. Wade leaked more than a week ago, and those who support abortion rights remain in a state of dismayed horror as they realize something they knew in their gut was coming might actually have arrived. Those who have spent the decades since the landmark 1973 decision, which affirmed a constitutional right to abortion, working to nullify a pregnant person’s bodily autonomy, now seem flustered and verklempt as they vacillate between delight and an existential what-now.

The Supreme Court, which sits just across the street from the U.S. Capitol complex, is of course just a building. The nine justices therein hold the authority. Nonetheless, the sight of this edifice surrounded by slick metal with law enforcement officers admonishing even joggers and dog walkers to keep to the far side of the street, just adds to the sense of relentless mayhem and disintegration that the country just can’t seem to shake. The security measures are yet another reminder that the we no longer fight fair. We engage in violence instead of debate. We prefer ad hominem attacks. We deny facts. Our institutions aren’t reassuring and above the fray. They’re part of the problem.

In these past few years, the country has seen a lot of this heartbreaking, infuriating fencing. We saw it around the White House in the wake of the social justice protests in 2020 and before the presidential election. In the week after the Jan. 6 attempted coup at the Capitol, the great building — battered and broken — was cordoned off from the American public. And for a time, the perimeter extended so far that the Supreme Court and neighborhood parks were closed off from passersby. In each case, the giant metal wall was a symbol of defeat; one more battle lost in the fight to preserve an open democracy. At the Capitol, it was a particularly sad statement on how much of a threat we had become to our very own ideals about the peaceful transfer of power, free and fair elections and the sanctity of the vote. The People tried to scale the walls and hunt down duly elected legislators and stop the certification of a fraught election. The people could no longer be trusted.

And now the fencing has come to the Supreme Court, to the third estate. The fencing speaks to all the anger, dysfunction and distrust that afflicts the country. It’s a testament to the division. But the population has been divided on the subject of abortion for decades; the fence is more than that. It’s a representation of our fear. We no longer simply disagree with our neighbor or even dislike them. We are afraid of each other. And some of us are terrified of this court.

Seeing the fence encircling the Supreme Court is jarring. This is not the branch of government known for raucous debate. It’s not a place where incivility has become part of daily life. At the Supreme Court, the players aren’t jockeying for political advantage or pandering to their constituents in ways that are both profane and pathetic. On court grounds, there are benches and flower gardens and places to linger quietly, away from the hullabaloo.

At the Capitol, the barrier to entry is low. Almost anyone who meets the most basic requirements of age and residency can throw their hat into the ring and get themselves voted into office to represent some tiny, gerrymandered slice of the public. And so you get blowhards and sycophants, egoists and ignoramuses mixed in among those just striving to be dedicated public servants.

The court is supposed to be the place of calm reflection, high-minded considerations and civil disagreement. We go through the motions of grilling nominees trying to suss out their qualifications and the strength of their intellect. As much as court critics lament all those Ivy League degrees on the justices’ resumes, the truth is we can’t get past our belief that those credentials give them a particular stature. And even as political strife began seeping into the court’s core, there remained a stubborn hope that the seepage wasn’t so bad that it would rot the foundation.

Chief Justice John Roberts frets about the politicization of the court, not as a fait accompli, but as a creeping threat. Sen. Susan Collins, R-Maine, a legislator who supports abortion rights and who is forever fretful but rarely forceful, relied heavily on the word “if” when asked if she has regrets about voting to confirm justices Brett Kavanaugh and Neil Gorsuch, who are reported to be on the side of overturning Roe. If the draft is correct, she was misled. If the reporting is accurate, it’s “inconsistent” with what these men told Collins when they met with her in her office to win her approval on the road to lifetime positions with daunting power and influence. There’s so much hope in that tiny word: if.

If the draft opinion holds, will the fences be tested? And if they are tested, will they hold?

The fencing around the Supreme Court separates us from them. The many from the few. The majority of Americans who believe that Roe v. Wade should be upheld and the minority who do not. The justices have the mandate to help our democracy wrestle with never-imagined cultural change and social evolution. We are desperate for them to exhibit intellectual rigor. We wish them the wisdom and understanding of Solomon. We don’t so much as hold them in esteem as expect them to be worthy of our doing so.

Instead, we’re left to wonder what they might unleash: A country of deepened inequality? A society that denies women self-determination? A court that sees little right to privacy? A court with a constituency defined by politics rather than fairness? A court to fear.

The fencing may have been installed with the intent of keeping members of the court safe, but no fence can stave off the terrors the court has conjured in so many others.

Robin Givhan is senior Washington Post critic-at-large writing about politics, race and the arts. A 2006 Pulitzer Prize winner for criticism, Givhan has also worked at Newsweek/Daily Beast, Vogue magazine and the Detroit Free Press.

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