Justice Amy Coney Barrett is offended by those questioning the impartiality of the Supreme Court.
“This Court is not comprised of a bunch of partisan hacks,” she announced at a recent event at the University of Louisville’s McConnell Center, named for Senator Mitch McConnell. “Judicial philosophies are not the same as political parties.”
For Barrett to insist on her nonpartisanship at a center named for the legislator whose procedural hardball was instrumental in securing her seat suggests that, although Barrett’s peers have praised her legal mind, her sense of irony leaves something to be desired. But then, it’s not much more absurd than her colleague Justice Brett Kavanaugh insisting on his impartiality days after vowing revenge against the left while under oath. Similarly, Justice Clarence Thomas recently warned against “destroying our institutions because they don’t give us what we want, when we want it,” complaining that “the media makes it sound as though you are just always going right to your personal preference.” Next month, Thomas will give a keynote address at a symposium celebrating his years on the Court at the right-wing Heritage Foundation, alongside McConnell.
This insistence—that justices are simply following the law—is a common rhetorical tool in the partisan conflict over the Court. The most partisan judges will not admit to being hacks, instead framing their actions as consistent with the rule of law. No one wants to admit to being a hack; even hacks have to sleep at night, and resting is much easier if you’ve convinced yourself that you are an infallible tribune guided by the infinite wisdom of the ages.
The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come. Anticipating their future triumphs, though, the very justices championed by this movement have taken to denying both this victory and its implications, insisting that this casino is resolutely opposed to gambling—in fact, it’s not a casino; it’s a church, and its critics are engaging in acts of civil blasphemy. With absolute control of the Court, the conservative legal movement’s main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn’t make the proposition that the justices are free of partisanship any less ridiculous.
…
In the 1970s, in the aftermath of Supreme Court decisions on due process, segregation, abortion, Church-and-state separation, business regulations, and pornography, conservatives sought to recapture the Court and bend it to their will. Conservative legal organizations helped groom generations of conservative attorneys whose decisions would more often reflect the political and policy views of the Republican Party. Where judges and justices have diverged from those preferences, the conservative movement has reacted with outrage.
As the political scientist Steven Teles writes in The Rise of the Conservative Legal Movement, in 1972 Patrick Buchanan, then an aide to President Richard Nixon, exulted that “the president has all but recaptured the institution from the Left; his four appointments have halted much of its social experimentation; and the next four years should see this second branch of government become an ally and defender of the values and principles in which the President and his constituency believe.”
That turned out not to be true at the time—a fact that would inspire the rise of the powerful conservative legal infrastructure that has led to a 6–3 majority on the Supreme Court, despite the fact that a Republican president has won the popular vote only once in three decades. As Teles writes, the failure of Nixon appointees to “transform the Supreme Court taught conservatives that electoral success was not enough.” The immensely powerful Federalist Society was founded as part of an effort to create a right-wing alternative to what conservatives saw as the dominance of legal liberalism, forming a community where conservative legal philosophy could be debated and developed, from which could emerge activists, attorneys, and judges who would ultimately shape the law and the courts. In short, a movement.
Take Clarence Thomas. Then-President George H. W. Bush chose Thomas in part to shore up his right flank in the aftermath of his appointment of Justice David Souter, who would end up siding more often with Democratic appointees. In that respect, Thomas has not disappointed the activists who ensured his placement on the Court; he called for Roe v. Wade to be overturned after less than a year on the bench. As Jeffrey Toobin writes in The Nine, when Sandra Day O’Connor retired, in 2005, the conservative activist Manuel Miranda began warning George W. Bush against appointing his attorney general, Alberto Gonzales, to the Court. “It’s really no more Souters and no more Kennedys. And that does not add up to an appointment for Gonzales,” Miranda wrote. Toobin adds that Miranda “helped popularize the devastating quip ‘Gonzales is Spanish for Souter.’” The point here is as clear as the Caribbean in the summer: Only justices who will reliably ensure the outcomes desired by the conservative movement can be appointed.
By “no more Kennedys,” Miranda meant Anthony Kennedy, a conservative justice like O’Connor who would occasionally side with Democratic appointees in big cases. Samuel Alito, Bush’s chosen replacement for O’Connor, had worked in Ronald Reagan’s Justice Department, where, in a 1985 abortion-rights case, he wrote a memo advising that “we should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.” Alito isn’t the only Supreme Court justice with a paper trail that illustrates long-held political views; as a young attorney, Chief Justice John Roberts wrote a memo complaining that the Voting Rights Act’s anti-discrimination provisions were too strong, and then gutted them in an opinion as chief justice without ever describing what part of the Constitution they violated.
The public is meant to look at these justices’ records on abortion and voting rights and assume that it is just a coincidence that their legal reasoning lines up with their policy preferences.
…
The day Thurgood Marshall retired, he issued a furious dissent to a decision that strengthened the death penalty. “Power, not reason, is the new currency of this Court’s decision-making,” Marshall wrote, dissenting from the majority opinion in Payne v. Tennessee. “Neither the law nor the facts … underwent any change in the last four years, only the personnel of this court did.” The same is true of every precedent overturned by the Roberts Court, from voting rights to labor law.
…
The conservative movement seems to have secured the Court for a generation at least, but that is insufficient. The right-wing justices also demand their decisions be seen as the outcome of dispassionate legal reasoning, not partisan warfare. They do not want the legitimacy of their proclamations, or the institution itself, questioned to the point where their liberal counterparts might consider paths as drastic and radical as the ones they took to get here. They wish to be admired and celebrated as the sagacious intellectual giants they believe themselves to be (Serwer 1-3)
Justice, as we’re frequently told, is supposed to be blind. But court seats have never been filled by blind picks. “A judge is a lawyer who is a politician who has a friend,” Judge Paul Leahy once told his then-clerk Floyd Abrams, piercing his way to the truth. Liberal presidents pick liberal nominees and conservative presidents pick conservative ones. It’s built into the system. Filling the Supreme Court with partisan nominees is one of the reasons parties campaign so hard to win the presidency!
After almost two centuries of decrying partisan courts, why can’t we accept the Supreme Court has always been and always will be a political playground? “Partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments,” writes historian Rachel Shelden of the 19th-century court. “Most nominees had served in federal, state or local political positions,” she continues. Back then, Senate majorities often declined to confirm or even consider nominations by presidents from the opposing party on political principle. In 1800, the lame-duck Congress of Federalists went so far as to delete one seat from the Supreme Court to block President Thomas Jefferson, who was from an opposing party, from filling an opening. As everybody knows, in the early 1930s, President Franklin D. Roosevelt affirmed the political nature of the Supreme Court by attempting to recast its majority by expanding the court (“court-packing”). Some of today’s liberals, displeased by the Republicans’ 6-3 dominance of the court, want President Joe Biden to pack the court.
… You don’t find Supreme Court justices at the Schwab’s soda fountain. Most Supreme Court justices come up through partisan politics. John Roberts worked for Presidents Ronald Reagan and George H.W. Bush. Elena Kagan was a President Bill Clinton hand. Neil Gorsuch and Brett Kavanaugh labored for President George W. Bush. The striving begins in law school, where young aspirants find politically connected legal mentors and join organizations like the Federalist Society, where future Republican Supreme Court justices are groomed. The big sort goes on as aspirants campaign for clerkships and then judgeships, join politically connected law firms and make themselves known to power brokers they hope will someday help them reach the high court (Shafer 1-2).
Asked to name a famous Supreme Court case, many Americans would probably initially think of three that are the best known for expanding the constitutional rights of individuals: Brown v. Board of Education, which said children have a right to attend desegregated schools in 1954; Roe v. Wade, which said women have a right to have abortions in 1973; and Obergefell v. Hodges, which said gays and lesbians have a right to get married in 2015.
These landmark decisions helped to create a political mythology of the Supreme Court as an institution that has always protected the rights of Americans. However, the politicization of the courts magnified by President Trump and Senate Republicans has ironically highlighted a truth often ignored: The nation's highest court is inherently undemocratic.
Since the election, Trump has made it clear he believes the court and the three justices he appointed — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — should deliver an electoral victory for him. This is despite the fact that Joe Biden won with 306 electoral votes and by a margin of more than 7 million votes.
…
Not only will the court have the power to block the policy agenda of a popularly elected president, but the very process of choosing justices has become widely undemocratic. Republicans have won the popular vote only once since 1988, but they have appointed six out of the last 10 justices. The senators who voted against Barrett represent 13.5 million more people than do the senators who voted for her.
…
… despite widespread faith in the Supreme Court, the institution has not always stood on the side of expanding individual rights and democracy. Brown v. Board overturned Plessy v. Ferguson, which found segregation constitutional six decades before. Korematsu v. United States upheld the internment of Japanese Americans during World War II. Buck v. Bell, a 1927 ruling that's never been technically overturned, upheld forced sterilization of those considered "feebleminded."
For its part, the court under Chief Justice John Roberts has seriously weakened democratic rights. Shelby County v Holder gutted the Votting Rights Act and ushered in a new era of voter suppression since 2013. Citizens United v. FEC has made it difficult to effectively regulate campaign financing for the past decade. And last year's Rucho v. Common Cause said federal courts had no business placing limits on partisan gerrymandering.
…
Ultimately, Democrats should make the argument that in a democracy the will of the majority should not be so wholly subjected to nine unelected officials. (Scofield (1-2).
… even before the current gaggle of right-wing legal operatives took over, the court was rarely a democratic bastion of justice and equality. Rather, in its 233-year history, members have most often served as tenacious protectors of wealth, property, privilege, and the corporate order, fending off the egalitarian aspirations and demands of riffraff like you and me.
Today’s six-member super majority has surrendered all claim to being an impartial moral force for blind justice. Instead, the GOP’s small network of corporate and right-wing operatives has painstakingly fabricated and weaponized the court as its own political oligarchy. In only a couple of decades, backed by a few billionaires, these anti-democracy zealots have incrementally been imposing on America an extremist political agenda that they could not win at the ballot box.
Their Eureka! Moment–the startling development that opened the eyes of the moneyed elites and ideologues to the raw power they could grab by politicizing the judiciary–was the Supreme Court’s illegitimate Bush v. Gore ruling. In December 2000, that five-person GOP majority abruptly crashed Florida’s presidential vote count, storming over both democracy and judicial propriety to install George W in the White House. Appalled, dissenting Justice John Paul Stevens mocked the five, pointing out that while their trumped-up ruling didn’t really establish whether Bush or Gore won, it did make the loser “pellucidly clear: It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
One of those who helped run the court’s blatant political power play over the Florida vote was an obscure corporate lawyer who had long been an aggressive, behind-the-scenes Republican monkey wrencher pushing to restrict voting by people of color, the poor, and other Democratic constituencies: John Roberts. Shortly thereafter–surprise!–Bush elevated Roberts to a top federal judgeship, and just two years later moved him on up to America’s ultimate judicial power spot, chief justice of the Supremes.
From this lofty roost, Roberts has orchestrated an expansive political docket for the court, handpicking cases created and advanced by far-right interests. He then has manipulated precedents and procedures to produce convoluted decisions that impose plutocratic, autocratic, and theocratic domination over the American people’s democratic rights and aspirations.
To date, Chief Justice John Roberts has cobbled together slim, all-Republican majorities to hand down more than 80 blatantly partisan rulings, fabricating law that We the People have never voted for and don’t support. They include these infamous decrees:
In the Kafkaesque Citizens United dictate of 2010, the court’s 5-4 right-wing clique embraced the absurdity of “corporate personhood,” asserting that giant, autocratic corporations (paper constructs with no body, brain, breath, voice, or morality–but lots of money) have a constitutional right equal or even superior to actual persons to spend unlimited, often secret, sums of their corporate cash to dominate our elections.
Spending on elections, they insisted, is just a form of speech and is thus protected by the Constitution. (This ruling conveniently slides past the obvious conclusion that those with the most money get the most speech, meaning that “free speech” is not free at all.) Their ridiculous play on words has produced a geyser of corrupt money from huge corporations intended to install their chosen agents in high office, defeat direct-democracy ballot initiatives proposed by grassroots progressives, and–not coincidentally–further pack our courts with judges who will serve their special interests over the public interest.
While the federal judiciary has aided corporate bosses and rich shareholders for decades by chipping away at hard-won legal protections for working families, the chisel has become a jackhammer in the last few years. GOP judges routinely pound precedents, logic, truth, and the Constitution itself beyond recognition, not merely to rule against unions, but to demolish the structural pillars of labor rights and organizing.
In a 2018 case, for example, the GOP Five undermined the funding of unions by arbitrarily striking down their process for collecting dues–a practice the court itself had authorized 41 years earlier. As Justice Elena Kagan bluntly put it in her dissenting opinion, there was no reason for the court to barge into this matter of long-settled law … except that the corporate-backed Republican majority simply didn’t like the previous decision and overruled it “because it wanted to.” This was yet another open-and-shut case of five black-robed partisans supplanting America’s hallowed rule of law with their own anti-labor whim.
The Roberts Court has become the linchpin of the Republican Party’s nationwide attack on the voting rights of African Americans, Latinos, and other constituencies inclined to support Democrats. Mass-scale voter suppression depends on a compliant network of starkly partisan judges to legalize it, and the Republican Supremes have willfully made the moral stain of this suppression the indelible emblem of their tenure. In a 2012 North Carolina case, Roberts led the charge, glibly gutting the Voting Rights Act of 1965. To nearly everyone’s astonishment, he decreed from on high that racism was over, no longer presenting a barrier to Black voters in the South! … abracadabra–he and his four regulars merrily ruled that the core protections against voter suppression in the Voting Rights Act were henceforth null and void.
This action unleashed GOP legislatures and white supremacists to do their own thing regarding access to the polls. And they leapt at the chance. Since then, dozens of new barriers have been erected in every state covered by the Voting Rights Act. But Roberts and his right-wing cohorts have never admitted an error or apologized, instead pushing case after case to further undercut democratic access to the polls.
Since the Supreme Court’s 1973 Roe v. Wade case established that women have a constitutional right to control their own reproduction decisions, including the right to choose a safe abortion, a nay-saying minority has ceaselessly pushed to take away this right. They insist that state and federal governments–not women –can make these decisions. Today, all GOP judges on the top court are in lockstep, and they’ve now rigged the system to bring up a case that might let them impose their political will. …
...
… Throughout Roberts’ reign, the court has sided with the Chamber of Commerce (the chief front group for US corporate giants) a staggering 70% of the time! Indeed, three members–Roberts, Samuel Alito, and Clarence Thomas–now rank among the five most-corporate-friendly justices of the past 75 years.
… In a Quinnipiac survey last November [2021], more than six in ten Americans said they believe Supreme Court decisions are motivated primarily by politics, not by unbiased readings of the law. Rather than instilling a modicum of humility, however, the bad reviews have stirred embarrassing outbursts of judicial pique and vitriol. Justice Alito, for example, whined loudly last year that critics are engaged in “unprecedented efforts to intimidate the court or damage it as an independent institution.” Likewise, Justice Barrett was so stung that she felt it necessary to go public with a strained denial, pleading for the public to believe that “this court is not comprised of a bunch of partisan hacks.”
…
Today’s tightly knit Republican majority on the court did not come together by happenstance–and certainly not because any one of them was the brightest, most fair-minded choice in the land. All were handpicked … because they could be counted on the use their lifetime appointments to make our laws accord with the GOP’s right-wing agenda and to return to their imagined ideal of the Grand Old Days of pre-1930s corporate supremacy. This is a direct special-interest assault on workaday Americans and on the very idea of America.
…
Lisa Graves, a corporate watchdog and advocate of fair courts, reminds us that “the choice of who interprets the US Constitution and the laws of our land is every bit as important as electing those who make the laws in the first place.” The moneyed elites figured this out years ago and have captured the top court. Now, democracy champions must free it from their corporate grip (Hightower 1-4).
Works cited:
Hightower, Jim. “How the Right Wing Captured the Supreme Court.” The Hightower Lowdown, March 31, 2022. Net. https://hightowerlowdown.org/article/how-the-right-wing-captured-the-supreme-court/
Scofield, Katie. “New Year, Time for New Thinking about the Undemocratic Nature of the High Court.” The Fulcrum, December 23, 2020. Net. https://thefulcrum.us/balance-of-power/supreme-court-justices
Serwer, Adam. “The Lie about the Supreme Court Everyone Pretends To Believe.” The Atlantic, September 28, 2021. Net. https://www.theatlantic.com/ideas/archive/2021/09/lie-about-supreme-court-everyone-pretends-believe/620198/
Shafer, Jack. “Opinion: Let’s Be Real: The Supreme Court Is Political and Always Has Been.” Politico, January 28, 2022. Net. https://www.politico.com/news/magazine/2022/01/28/supreme-court-is-political-always-has-been-00003224
No comments:
Post a Comment