The Less Than Supreme Court
How Recent Supreme Court Decisions Have
Damaged Both the Court and the Constitution
There’s a pattern:
In November of 2000, immediately following the very close, highly contested, presidential contest between George W. Bush and Al Gore, John Roberts, a lawyer in private practice who had clerked for Chief Justice Rehnquist, rushed to Florida to be legal adviser to then Governor Jeb Bush during the to be decisive Florida recount; a recount decided not by the counting of ballots but by Reagan Appointee Justice Scalia’s bullying the court into its halting. Six months later, now President George W. Bush nominated the aforementioned John Roberts for the D.C. Circuit Court of Appeals only to be rebuffed by a Democratic Senate Majority. When Republicans regained Senate Majority in January 2003, Bush renominated Roberts; this time, he was confirmed. In 2005, President Bush successfully nominated John Roberts for Chief Justice of the Supreme Court. After all, he owed him.
Justice Thomas was chosen by George H. W. Bush to replace the retiring civil rights icon, Justice Thurgood Marshall. Clarence Thomas was chosen because of his ultra-conservative republican bona fides, his being black, and the unlikeliness of his being another Justice David Souter.
Justice Alito was chosen by George W. Bush because of his ultra-conservative republican bona fides; and the unlikeliness of his being another Justice David Souter.
All six, Justices Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett, were chosen for nomination by Republican Presidents on the basis of their being ultra-conservative republicans; on the basis of their perceived ideology.
The majority of the current John Roberts’ court is made up of the overly ambitious, of people willing to do whatever it takes in order to realize those ambitions. Justices Gorsuch, Kavanaugh and Barrett accepted nomination by a man they surely must have known to be patently unfit to be President; a President who was to be impeached twice during his four-year term. All were confirmed with the help of the Federalist Society, other right-wing groups, and the unfit Mitch McConnell. For all three, their very nominations depended on the chicanery of McConnell. So much for what’s right; for what is best for the Nation.
Mitch McConnell’s further stuffing of the Supreme Court with right-wing justices Gorsuch, Kavanaugh, and Barrett further lessened the court. A court with bias is not a real court, but is rather a political body. Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett are all conservative ideologues. Rather than enrichen, they diminish the court. Their appointments, by Bush, Bush, and Trump, have successively diminished the court. Nary a giant among them; nary a good judge. The likes of Thurgood Marshall, John Paul Stevens, and Ruth Bader Ginsberg have been replaced with the likes of Clarence Thomas, Sam Alito, and Amy Coney Barrett.
While Scalia’s opinion on the Second Amendment, Heller, 2008, had beggared credibility; Roberts’ on Shelby, 2013, and Rucho, 2019, and the conservative majority’s on Citizens, 2010, benefited the Republican Party, beggared incredulity. These decisions were not scholarly. Any scholarism exhibited was bent on twisting the meaning of the law for the purpose of obtaining the desired results; was being applied as lawyerly advocacy; was a political, not judicial, act.
When they said that they were ‘Originalists’, what they meant was that they would interpret the constitution to mean what they, read, ‘their patrons’, wanted it to mean. This has had consequences. People now had less faith in the Supreme Court to get it right; to do the right thing. Perhaps worse, because of decisions such as these handed down by the Roberts’ Court, and of earlier ones handed down by the Rehnquist Court, more and more Americans are finding it difficult to believe in the Constitution; thinking that it can be, has been, jiggered by such Supreme Court decisions. That with the right Supreme Court majority, the Constitution can be interpreted to mean whatever the Justices and their supporters want it to mean.
They see a court more concerned about religious rights, business’ interests, and ‘states’ rights’, than it is about civil rights. A court more concerned about corporations than it is about people. A court more concerned about Federalism than it is about democracy, than it is about the constitution. More have come to see the whole ‘Originalists’ bit for the sham it is. Five of the current Supreme Court Associate Justices are unfit, and Chief Justice Roberts is unfit to be the Chief Justice. Because? Because they were chosen first and foremost for their ideology.
There is no constitutional requirement that Supreme Justices be directly representative, be chosen by ballot. It was thought that they needed to be above the rabble, the fray. It would be good if they were reflective of society (the President who nominates them is the President of all the people). Those currently in the majority are far more reflective of the interests of the Chamber of Commerce, some extremely wealthy Republican donors, and the right-wing Federalist Society than they are the interests of the public.
A requirement for a two-thirds majority approval in the Senate would have kept five of the six, all but John Roberts, off the Supreme Court.
In her NYT opinion column https://www.nytimes.com/2021/01/14/opinion/supreme-court-trump.html Linda Greenhouse speaks to the unbound ambition, the lack of real-life experiences of most of the justices.
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A 13 Jan 2021 twitter posting by Mark Joseph Stern, Slate Magazine, shows John Eastman, chairman of a Federalist Society practice group pre-insurrection rally spouting conspiracy theories about voter fraud. https://twitter.com/mjs_DC/status/1349386512069251079
It appears you like this stuff. Here is a person I follow and read his articles. He represented us in Federal courts and SCOTUS. I am sorry your posts are not getting comments although I believe they are read.
erwin chemerinsky sacramento bee – Google Search
Run:What I, and, I suspect, Prof Chemerinsky, too, am/are hoping for is to bring attention to problems of the now and immediate. In a sense, the fun is in trying to look ahead, to predict. When last Sunday’s Talk Show hosts hit Paul et al with the liar charge, warmed me heart, it did. Looks like the Prof and I were on the same page on the Electoral College at about the same time; note, we were both ahead of the curve. Months back (History, Now, …),I wrote about the importance of knowing what is going on now. That’s my real interest. Bang on on Hawley, and, I think, Huge! and Innovation. Tort is another to watch. Be interesting to know what the good Prof thinks. Ask him if you get a chance? My best friend is an appellate lawyer who seemingly has much less faith than I in Tort. We shall see. Suppose we could ask Rudy.
All the things I choose to write about: economics, law, history, philosophy, environmental, education, government, science … are of interest to me. Especially when it comes to the now of it all. It is especially important to get it right. That’s the hard part, the best thinking part, and, sometimes, the fun part.
I will eventually. The timing has to be right. One question I posed to him as I was telling an attorney he was full of political crap. He was lying because I was not an attorney and he felt he could get away with it.
And an answer:
The last sentence is the finality to many of the things we have talked about or at least what I have read here.
I posted this here at AB 1/2010 when the Citizens United case was decided. It resulted in a fair amount of comments. Thought you would be interested in both my post and the comments.
The issue, as presented then has only become worse since, as you note here.
I believe we have lost the ideals that came from the effort of enlightenment resulting in the documents: Declaration of Independence and the US constitution. To me the documents put into motion the attempt to live up to the ideals of a philosophy about life. Without an appreciation, an understanding of the ideals and the philosophy which they come from, we can not possibly support or maintain the application of the Constitution to our social structure at large and thus our individual lives.
We fail to look at the whole and instead try to interpret and apply in a reductionist manor. It may work for tangible science but it does not work for an abstract such as putting meaning and purpose to life. Our Constitution is an abstract. It is the materialization of ideals of a philosophy.
The ideal of selflessness has been buried over time via legal rulings and political action. Our nation can not survive under our present constitution without this ideal.
I fear that we do not have the intellectual capacity to appreciate the ideals and philosophy that resulted in the Declaration of Independence and our Constitution.
This was confirmed for me when Trump was elected. It was not Trump I feared. It was that almost 1/2 of our nation did not have the ability to see that he was (and is) not capable of helping them. How could such people possibly comprehend even in the slightest bit the intellectual maturity put down in the words of our Declaration of Independence and our Constitution?
I’m not talking about how we got here, that is an entirely different discussion.
Any way, here is what I thought then: http://angrybearblog.com/2010/01/responding-to-glenn-greenwalds-what
Linda Greenhouse on The Court’s Trump v Hawaii (Muslim ban) and its portents for the future. Hint: Roberts et al are hung up on religious rights.