How SCOTUS Got Us Here
My previous post was about an article titled What Are We Living Through by Jedediah Britton-Purdy and David Pozen. The authors offer three scripts people use to answer the title question.
It seems odd that the authors, both law professors, don’t address the role of SCOTUS, but it’s probably because people don’t think about the role of SCOTUS in creating this disastrous presidency. But thinking about SCOTUS clarifies the situation. The Trump regime isn’t a sudden turn, as centrists and almost all Democratic politicians say. It is part of a long project, funded by an ever-changing group of filthy rich right-wing White people. One of their first overt steps was taking control of SCOTUS.
Gaining control of SCOTUS
Appointments to SCOTUS have had been virulently political at least since the nomination of Robert Bork was stymied by Democrats, based largely on “… his outspoken criticism of the Warren and Burger Courts and his role in the Saturday Night Massacre.“ The filthy rich loved Bork both for his right-wing politics and for his devotion to their interests.
The Federalist Society was formed in 1982 by students at Harvard, Yale and University of Chicago law schools “… with the aim of challenging liberal or left-wing ideology within elite American law schools and universities.” Bork and Antonin Scalia spoke at their first public event. The Wikipedia entry says this about early funding
… $5.5 million came from the John M. Olin Foundation. Other early donors included the Scaife Foundation, the Bradley Foundation[ and the Koch family foundations. Donors to the Federalist Society have included Google, Chevron, Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family.
Readers will recognize those right-wing operations run by inheritors of great wealth.
Leonard Leo founded the Cornell branch of the Federalist Society and moved on to employment there. Under his leadership, five of the current members of SCOTUS are members of the Federalist Society.
Hacking at democracy
Once right-wing ideologues took over SCOTUS, they began hacking away at laws intended to protect our democracy. They got rid of campaign finance laws, eviscerated anti-corruption laws, wrecked the Voting Rights Act, authorized gerrymandering, and gave the filthy rich nearly everything they wanted. In the process, they ignored or dismantled guardrails on their own power, rules like standing, justiciability, and minimal decisions; they took on the role of determining facts (a role supposedly played by trial courts) and ignored stare decisis, the fundamental basis of US Constitutional law. Trump v. US freed Trump from criminal liability for anything remotely related to the office of President.
These cases had a huge impact, not least of which was the election of Donald Trump to a second term
Weakening Congress
Gerrymandering and toothless campaign laws enabled the Republicans to control the House of Representatives. Structural features of our system, including equal representation of states in the Senate and the filibuster made it possible for the Republicans to prevent congressional action.
SCOTUS compounded this weakness by striking down legislation it didn’t like. For example, John Roberts has a long-standing hatred of the Voting Rights Act. In Shelby County v. Holder he struck down the provision requiring certain states with a long history of racial discrimination in voting to submit all changes to their voting laws for pre-clearance. This procedure enabled the Department of Justice to review those laws for racial discrimination before they were allowed to take effect.
Roberts justified his decision with a newly-invented fiction he called the dignity of the states. Congress.he said, hadn’t done enough to satisfy Roberts that pre-clearance acted reasonably by singling out states with a history of racist actiions, somehow explaining away the express grant of such power toCongress in the 15th Amendment. Effectively Roberts set himself up as the arbiter of whether Congress had done enough to justify a rule he didn’t like.
Strengthening Trump
In Trump v. Andeerson, SCOTUS held that only Congress can enforce the 14th Amendment’s insurrection clause, effectively neutering it. In Trump v. US the current majority held that the president cannot be held accountable for crimes he commits that the current majority says are within the core executive functions of the president. These two cases cleared the way for Trump to run again.
Because there were no enforceable limitations on campaign finance, Trump was able to raise hundreds of millions from the filthy rich and got a second term. He promptly began breaking laws. He destroyed entire agencies and weakened the rest of them, he set masked gunsels to snatch people off the street if they looked like not-white people (an action permitted as Kavanaugh Stops), refused to comply with Congressional appropriation laws, fired heads of independent agencies, fired tens of thousands of federal employees, and more. SCOTUS has at least temporarily allowed all these assaults on Congress’ express Constitutional power, explaining that Trump wants it and if he can’t have it that’s a terrible injury, worse than allowing ICE to kidnap people.
Political discourse
I think Purdy-Britton and Pozen are mostly right about the nature of political discourse, and that’s a problem. Their three scripts don’t include this partial list of horribles about the current SCOTUS majority. Concentrating only on the marauding president is simply not good enough to deal with our situation. The Supreme Court has also lost its legitimacy and done terrible damage to our democracy in the process.
I agree with an opinion piece in The Guardian written by Ryan Doerfler and Samuel Moyn, law profs at Harvard and Yale, titled It’s Time to Accept that the US Supreme Court is Illegitimate and Must be Replaced. This article summarizes a longer paper, The Post-Legitimacy Court.. Both of these deserve more consideration than I give them here.
The paper cites Planned Parenthood of Southeast Pennsylvania as a major source of the idea of legitimacy:
“The Court’s power lies in its legitimacy,” Justices Kennedy, O’Connor, and Souter explained in their joint opinion, “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary fit to determine what the Nation’s law means and to declare what it demands.”
The authors say that the current majority has abandoned the goal of preserving legitimacy, suggesting that they
… might care about the views only of other conservatives (whether lawyers or the public) [which] would be consistent with the larger turn in Republican politics.
The authors discuss responses by some of my favorite legal writers. law profs Kate Shaw from the Strict Scrutiny podcast, and Steve Vladek. The authors say, and I agree, that their reactions to this Court are too legalistic and restrained. Doerfler and Moyn say the current majority has moved the Court’s institutional legitimacy to the brink of cliff, and citizens need to push it over the edge.
I agree, and would go farther. The current majority is not a court. It’s a group of six political actors no different from the majority of a congressional committee. Each member has goals, and these mostly coincide with the goals of the Republican Party and its largest donors. They have the votes and that’s all that counts. The current majority has rejected national legitimacy in favor of the exercise of raw power.
I always blame Roberts personally for every evil thing Trump does. Here’s an example.
Hammer the Court whenever you get the chance, on social media and in real life. It’s the first step to change.
I agree that SCOTUS is broken and nakedly political. But SCOTUS got that way because of the Senate, which I believe is a greater threat to the continued existence of any semblance of democratic governance in this country. It’s ridiculous that a state such as Wyoming – with a population of less than a million people – has the same number of senators as Texas (30 million people) and California (40 million people). This has allowed sparsely populated (mostly rural) states to become the tail that is wagging the dog. This needs to change, but I just don’t see how that might happen. Reconstituting SCOTUS would be (relatively) easier.
Ending partisan gerrymandering and instituting ranked-choice voting are two things that would greatly mitigate the current deeply polarized political environment and I think we need to start pushing for those as well.
Until a decade ago, my political motto was “Nuke the Senate.” Not so anymore, although the Senate (along with the Electoral College) remains an enormous democratic blight.
We should have known when Bush v. Gore was decided, with the stated intention that it not be used as a precedent, that SCOTUS was a sinking ship. Under Roberts’ leadership and with Trump’s appointees, it has hit the bottom of the Marianas Trench. The current court justifies overtly anti-constitutional decisions with such fantasy mantras as “The Unitary Executive” and “Major Questions Doctrine,” but as Ed writes this is nothing more than a concoction of the rich to serve the rich–to make them ever richer while squeezing the rest of us out of our money and, worse, our rights.
I am currently most alarmed by SCOTUS’s move to disempower lower courts, as if they (The Six) were the only ones who ought to make any decisions at all. That is not how America has ever worked. Under this regime, it has stopped working.
Or get rid of the Senate, which is what Rep. John Dingell (D-MI, RIP) advocated.
https://www.freep.com/story/news/local/michigan/2018/12/04/john-dingell-autobiography/2200949002/
What are your thoughts on a SCOTUS with 36 members, 9 assigned randomly to grant cert, and a separate 9 to adjudicate any accepted case?
The question does not seem worth serious consideration.
The process and total number of justices are unworkable. There are simpler solutions.
Yeah one Supreme Court Justice for each of our 13 judicial circuits, for example, with the next Democratic President selecting four Supremely Court justices to make up for the ones that were stonewalled by Mitch McConnell and snuck through without due diligence like Brett Kavanaugh.
“Federalist Society and the Heritage Foundation are closely aligned and work together within the broader conservative legal movement to promote similar judicial philosophies, often collaborating on judicial selection, such as compiling lists for Republican presidents like Donald Trump, and advocating for originalist and textualist approaches to the Constitution. Both are key players in shaping conservative influence within the judiciary, with shared goals for constitutional interpretation and public policy”
The MBTA in Boston had a vicious battle with Heritage on privatization of the MBTA, and we won!
They can and should be thumped whenever possible!
Step 1: Up the number on SCOTUS to 19, add 10 new members.
Step 2: Up the number of circuits to 18 (CJ doesn’t get one but floats) since “delays are long”. Possibly add a circuit just for Fort Pierce and for Amarillo (the young Aileen Cannon and Matthew Kacsmaryk, respectively). And more district courts since delays are up and judges are inventing principles whole cloth to kick out cases (cite to me the Constitutional provision or legislative language on ‘judicial economy’ or ‘rule of reason’ [antitrust term]).
Step 3: Add the “50 States of Columbia” and Puerto Rico as new states. No flipping things in the future. The 50 states come from the District of Columbia, since federal law permits the controlling political authority to authorize a territory becoming a state or being subdivided into multiple states. That’s Congress, same as the political authority that authorizes a territory’s request to become a state.
Step 4: Handle from there. Destroying the anachronistic Senate is permissible because slave states no longer have to fear the issue, and it plays by the rules. Destroying the House by twisting membership, and maybe forcing Congress to lift the self-imposed 435 member cap is permissible, and it plays by the rules. Finally, destroying cynical attempts to call a Constitutional Convention where each state the same 1 vote is permissible, and it plays by the rules.
By “playing by the rules”, CJ Johnny Roberts has radicalized or desensitized a lot of people. “By the rules” but contrary to the spirit of the law and decades of gentlemens’ agreements means that relying upon “spirit of the law” and “that’s not how it’s done” from Fox News or Mitch McConnell is meaningless.
One way to help rebalance the senate would be to admit DC and PR as states. This should be done for multiple ethical, legal, and political reasons.
There are many proposals on how to rebuild our institutions.
However, EW is making the case that this illegitimate court will fight all reform and continue to corrupt and rot our democracy from within. Therefore, reform must start with the court.
I agree.
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Legitimacy vs. legality was a significant discussion in both high school and college classes. The articles above as presented seem to omit an unresolved significant point. Legitimacy as with beauty is in the eye of the beholder. Trump is the perfect example. Similarly, the Court is on the brink of an illegitimacy cliff for some authors and citizens, but drawing it back from the brink for other authors and citizens.
The Court’s makeup in numbers can be changed. But there are two critical gaming problems with its Constitutional construction. I call them fatal flaws because the flaws lend themselves to gaming the system for personal and party purposes. rather than using the system to achieve the truths of the Declaration of Independence, our national raison d’etre.
First it is a simple majority vote that decides. A political party just needs a simple majority with justices of a similar political outlook to insure legislation in accord with the party’s desires. Second, there is no Constitutional definition of justice, although justice is central to the justices’ Constitutional and Judicial Oath obligations. Without a definition the justices self-define justice in a Potter Stewart pornography definition kind of way. That self-definition leads to the legitimacy discussion above.
The justices can come up with a definition of justice to guide themselves and make themselves accountable, just as they arrogated judicial review. The question is why don’t they? My guess is Lord Actons’s warning that power tends to corrupt and absolute power corrupts absolutely. They are called supreme after all. And they believe it.
I don’t have a solution. I think the problem is that SCOTUS has too much power, and I want to see it reduced. One change I think would really help is a statute requiring a supermajority vote, 7-2 right now, to declare a statute unconstitutional. The absurd idea that five of the six right-wing hacks can just throw out the work of the legislature is ridiculous. I think that’s one of Vladek’s suggestions.
If the Democrats take control of the House in the mid-terms, I’d hope they’d hold hearings on the Court’s majority. They could round up a bunch of experts who would explain the loss of all guard-rails, focusing on precedent, standing, and fact-finding. There should also be expert testimony on Article III, § 1, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,”, especially the term “good behavior”. I think it should mean that they are complying with judicial norms, which most of the six hacks arguably don’t. That lays the groundwork for impeachment. Then invite the six hacks to testify about those issues. They won’t show up. Then start impeachment hearings.
Vladek thinks that court-packing becomes realistic after this pattern of pressure.
Alito is known to invent precedents to make his opinions sound better. Thomas is just simply unqualified, still, as well as being openly corrupt.
When we wrote a constitution that created a higher law (a constitution approved by two-thirds of Congress and three-fourths of the states) and ordinary law (passed by a majority of the House and Senate and signed by the President), we created an absolute need for a Supreme Court to decide if a law passed by Congress is “constitutional”. Don’t forget that many of those who approved the Bill of Rights, passed the Alien and Sedition Acts, restricting freedom of speech, less than a decade later. We need a Supreme Court to protect minorities from the tyranny of majorities. Packing the Court will simply destroy what’s left of its credibility in an era where populism is running wild and we are fear that Trump will ignore a ruling from the Supreme Court.
People’s thinking becomes more rigid as they age and their egos expand. We need term limits on Supreme Court Justices so that they can’t serve after their early seventies. Even the saintly Ruth Bader Ginsburg, turned into the indispensable liberal rock star justice, allowing a Republican President to appoint her successor and creating the 6-3 conservative majority you abhor. To avoid such strategic resignations, justices need 18-year term limits staggered so a new justice is appointed every two years. Justices need to be confirmed by a supermajority of the Senate. If the President fails to nominate a justice who can win a supermajority in three tries, the Supreme Court will take over nominations with instructions to pick a respected centrist from a centrist Court of Appeals.
The Supreme Court is an institution comprising fallible humans. We shouldn’t look for perfection, but we can do a better job of stacking the odds in our favor.
The Supremes made the [Republican] President above the law with its immunity decision. The Supremes themselves are also above the law since the Judicial Council refused to do its job under the 1978 Ethics in Government Act when they refused to look at Clarence Thomas’ congenital inability to fill out financial discolosure forms correctly.
We now have two of the three branches of government above and beyond the law and, with the current Speaker of the House, we have at least half of the legislative branch absent without leave.
‘Twould be good to recognize the reality and then deal with it. From my perspective, we are doing neither.