Judges, Ideologues, Dogmatics, and Bad Decisions

by Ken Melvin

Judges, Ideologues, Dogmatics, and Bad Decisions

A judge should be wise enough to look to the possible consequences of his or her decisions. A judge should be wise enough to change his or her mind.  A judge should generally accord these qualities to the decisions of his or her predecessors. And, given that judges pass judgment on others, a judge should be law-abiding, of good moral character, … above reproach.

At the present time we have three, maybe four or five, supreme court justices: Alito, Thomas, Gorsuch*, and perhaps Kavanaugh*, and Roberts, who feel that they, more than anyone before them or now on the court, know how the constitution should be interpreted; would impose their interpretation on the nation no matter the consequences.  Some consequences of this sort of thinking of late include:  District of Columbia v. Heller, McDonald v. City of Chicago, Shelby County v. Holder, Citizens United v. Federal Election Commission, and, most recently, Rucho v. Common Cause; all decisions with horrendous consequences.

Columbia v. Heller:

The Second Amendment to the Constitution:

A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.

In 2008, in the Heller decision, the Supreme Court, by a 5 to 4 margin, affirmed a Court of Appeals ruling that a citizen had the constitutional right to possess a firearm separate the militia clause.

The Supreme Court held:

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.  

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

In writing the majority decision, Justice Scalia invoked his theory of original intent based on his review of colonial history and the early years of the republic and concluded that the Constitution’s Second Amendment meant, not what others before had said it meant, but whatever he said it meant some 230 years later. Scalia said that the second part, not the first part, was the operative clause. Scalia, not the second amendment, said, “ … to use that arm for traditionally lawful purposes, such as self-defense within the home.” Scalia was joined in the majority by Justices Roberts, Kennedy, Thomas and Alito.  Justice Stevens, who wrote the dissent, recently called Heller, “… the worst decision of my tenure.”


McDonald v. City of Chicago:

In the 2010 McDonald decision, the Supreme Court, by a 5 to 4 majority, held that the second amendment right recognized in Heller is fully applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that”the Second Amendment protects the right to keep and bear arms for the purpose of self-defense”

Writing for the majority, Justice Alito held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.  Justice Alito describes himself as a practical originalist.

14th Amendment:

Section1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While also joining the majority decision, Justice Thomas, in his concurrence, reached the same conclusion regarding the incorporation issue on alternative grounds, through the Privileges or Immunities Clause of the same Section 1. Thomas is often described as an originalist, or textualist, and a member of the conservative wing of the Supreme Court.

Both Justices Alito and Thomas are known to hold their own interpretation of the constitution to be above those of others before them.

The majority decision also reaffirmed that certain firearms restrictions mentioned in District of Columbia v. Heller are assumed permissible and not directly dealt with in this case. Such restrictions include those to “prohibit … the possession of firearms by felons or mentally ill” and “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Consequent Heller and McDonald, today, in 2019, guns kill some 40,000 Americans annually; on average, guns kill 7 American children a day; and 35 times as many Americans die from gun violence as do in comparable countries.  The right of some 5 million to own an assault weapon has come at a very dear price indeed.

How did we get such justices?  The NRA was the major player in their appointment.  Since the 1990’s, 337 million Americans have been tyrannized by 5 million paranoid half-wits led by a head case controlling who got elected to the US House and Senate; and thus controlling who was appointed to federal judge ships including to the US Supreme Court.

Shelby County v. Holder:

The Voting Rights Act of 1965 secured the right to vote for racial minorities; a right long much denied, in southern states.  According to the U.S. Department of Justice, the Voting Rights Act is considered to be the most effective piece of federal civil rights legislation ever enacted in the country.  

— On June 25, 2013, the Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula. —Wikipedia.

4(b) The provisions of subsection (a) shall apply in any State or in any political  subdivision of a state which (1) the Attorney General determines maintained  on November 1, 1964, any test or device, and with respect to when (2) the  Director of the Census determines that less than 50 per centum of the  persons of voting age residing therein were registered on November 1, 1964,   or that less than 50 per centum of such persons voted in the presidential  election of November 1964. A determination or certification of the Attorney General or of the Director of the Census under this section or under section  6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register.

The majority was delivered by Chief Justice John Roberts joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sam Alito. Four of these five: Scalia, Roberts, Thomas, and Alito were members of the Federalists Society.

—  “The Federalist Society for Law and Public Policy Studies, most frequently called the Federalist Society, is an organization of conservatives and libertarians seeking reform of the current legal system of the United States in accordance with a textualist or originalist interpretation of the U.S. Constitution.”  — Wikipedia:

Today’s Federalist Society, founded in 1982, bears slight resemblance to The Federalist Party of the late18th – early 19thcentury that,

“… appealed to business and to conservatives who favored banks, national over state government, manufacturing, and (in world affairs) preferred Britain and opposed the French Revolution.”, —Wikipedia.

That Federalist Party came into being between 1792 and 1794 as a national coalition of bankers and businessmen in support of Alexander Hamilton’s fiscal policies . These supporters developed into the organized Federalist Party, which was committed to a fiscally sound and nationalistic government. The only Federalist President was John Adams.”

Hamilton’s Federalists promoted an interpretation of the Constitution, but, contrary to what Chief Justice John Roberts said in his ruling, Federalism was never a ‘principle of the Constitution’. Federalism is not even a part of the Constitution (The US Constitution was ratified in June of 1788 and became effective in March, 1789). The Federalist Party had vanished by 1815, but the Federalists’ philosophy decisively shaped Supreme Court policy for another three decades through the personage of Chief Justice John Marshall (1801 to 1835).

Today’s Federalist Society promises a lasting legacy through Chief Justice John Roberts and Associates Thomas, Alito, Gorsuch*, and Kavanaugh*; a legacy not of wisdom and respect for the original nor for what has worked well but one of ideology and dogma; ideology and dogma premised on current conservative and libertarian political thinking.  A Court majority that knows best what the original framers intended and what the outcome should be well before the case is heard; few if any of whom are smart enough to change their minds. And, ironically, a majority that is inclined to favor States Rights just as did segregationists: Stennis, Wallace, Byrd, Eastland, Maddox, Faubus, Talmadge, Thurmond, … A majority that shows no interest in protecting the voting rights of Americans. Hamilton, too, not big on democracy, felt the nation should be ruled by people of means.

The dissent; written by Justice Ruth Bader Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan; held the opinion that Congress had sufficient evidence before it to determine that the coverage formula remained responsive to current needs. The dissent acknowledged that discrimination in voting has decreased in the covered jurisdictions since the Voting Rights Act’s enactment, but it attributed much of that decrease to the Act itself, noting that ” … throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” (presaging Justice Robert’s circular reasoning we shall see in Rucho v. Common Cause).

In a real democracy, with as few exceptions as possible, every citizen over a certain age would have a vote, all these would vote, and all of their votes would be equal.

The Consequences of Shelby County v. Holder?

—“Five years after the ruling, nearly 1,000 polling places had been closed in the U.S., with many of the closed polling places in predominantly African-American counties. Research shows that the changing of voter locations and reduction in voting locations can reduce voter turnout. There were also cuts to early voting, purges of voter rolls and imposition of strict voter ID laws. Virtually all restrictions on voting subsequent to the ruling were by Republicans.” — Wikipedia.

Since Shelby County v. Holder, Alabama, Arizona, North Carolina, North Dakota, Ohio, Texas, Wisconsin, … have enacted laws restricting or otherwise making it more difficult for some people to vote.

Citizens United v. Federal Election Commission:

— The case arose after Citizens United, a conservative non-profit organization, sought to air and advertise a film critical of Democratic presidential candidate Hillary Clinton shortly before the 2008 Democratic primary elections. This violated the 2002 Bipartisan Campaign Reform Act, which prohibited any corporation or labor union from making an “electioneering communication” within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time. — Wikipedia:

—In a majority opinion joined by four other justices (Roberts; Scalia; Alito; Thomas), Associate Justice Anthony Kennedy held that the Bipartisan Campaign Reform Act’s prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The Court overruled Austin v. Michigan Chamber of Commerce (1990), which had allowed different restrictions on speech-related spending based on corporate identity, as well as a portion of McConnell v. FEC (2003) that had restricted corporate spending on electioneering communications. The ruling effectively freed corporations to spend money on electioneering communications and to directly advocate for the election or defeat of candidates. In his dissenting opinion, Associate Justice John Paul Stevens argued that Court’s ruling represented “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.“—Wikipedia

While the conservative majority could not find for the right of the voter to vote in Shelby, it did find for the right of corporations to influence the vote with unlimited election spending in this case.

Consequences of the Citizen’s United decision: Allowing for unlimited election spending by corporations and fueled the rise of Super Pacs and gave inordinate political power to a minority, those who could most easily afford it, while denying due political clout to the average voter majority; thus serving the conservative and libertarian interests of the Federalist Society and those of Republican conservatives.

Rucho v. Common Cause:

From our Nation’s earliest days, Gerrymandering has been a favorite scheme for making some votes worth more than others.  By redistricting so that Party A’s voters are divided into several districts wherein Party B’s voters hold an insurmountable majority ensuring that Party B’s voters votes count and Party A’s voters votes don’t, Party B can make it so that only their votes count and Party A may come to understand that their voting is not even worthwhile.  Today, as in 1780, Gerrymandering, a consequence of the US Constitution allowing state legislatures to draw district boundaries, jiggers elections from the local to the presidential.

Today, legislative majorities from the former slave states, republican since the Civil Rights Legislation of the 1960s led to Reagan in the 1980s, never too keen on democracy, seek to limit those counted for purposes of representation in states like California, Illinois, New York, … while using such as the Gerrymander and voter restriction to limit political opposition in their own states while, again, retaining those disenfranchised for purposes of representation.

These same legislators have been most instrumental in stacking the US Supreme Court with privileged white male ideologues opposed to the provisions of the 1965 Voting Rights Act meant to make the vote more democratic. Today, the venal Mitch McConnell, born and raised until 14 in Alabama then Georgia, now representing the small, backward state of Kentucky with 8 electoral votes, member of the Federalist Society, controls all appointments to the Federal Bench.

June 27, 2019, The U.S. Supreme Court ruled 5 to 4, with the five conservative federalist justices {including McConnell and Don McGahn (who, along with McConnell, is also a member of the Federalist Society) shepherded Gorsuch* and Kavanaugh*} constituting the majority,

that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts.

Chief Justice John Roberts delivered the majority opinion. Circularly, they found it to be a political problem that needed be solved politically.  These in the majority are those who can always find a way to find for business interests, religious interest, … but can never find a way to find for democracy or the working class. Could the Chief Justice please tell us why ‘federalist principles’ are so much more important than ‘democratic principles’ ?

Chief Justice Roberts: Heller, McDonald, Shelby, Citizen’s, and Rucho were momentously bad decisions that other courts must and someday will overturn. History will not be kind. Yours is not a majority of wise judges; but one of ideologues and dogmatics.  With history now being writ by this stuffing of the courts, how can democracy survive going forth with a majority of its federal judges and justices so ideologically conservative, so opposed to democratic principals, … so unrepresentative? Andrew Jackson asked as to the Supreme Court’s army; Justice Stevens asked to what the Supreme Court would be without the respect of the people.

* Both nominated by Trump, who did not win the popular vote, and confirmed under the ‘nuclear option’ invoked by Senator McConnell to allow for nomination with a simple majority.