This Dishonorable Court

June 11, 2019

Last week we talked about ways to block appointments that could make this Court even worse. Is it worth it?

First, if allowed to fester, patterns of Court decisions can last for long periods.

In 1876, the Court denied any federal jurisdiction to prosecute racially motivated violence intended to change political control of government, setting the stage for segregation and intimidation which the Court finally began to address 64 years later. In 1883 the Supreme Court held that Congress had no power to ban racial discrimination in public accommodations. That remained the law until Congress and President Johnson took the Court on in 1964, a reign of discrimination and violence which continues to corrupt race relations.

Later in the nineteenth century, the Court set itself against the economic ideas of the Populists, Progressives and many state governments. That finally changed in 1937, after almost half a century, by which time President Roosevelt was on his way to appointing the entire membership of the Supreme Court.

Republicans like to blame the Warren Court for everything they don’t like but it was the Burger Court, with four Nixon appointees, that decided Roe v. Wade. Abortion foes still struggle to reverse it after nearly half a century.

In other words, patterns of judicial decisions can last for long periods despite concerted efforts to reverse them.

Second, what the Court has been doing under Chief Justice Roberts is very damaging to American decency and democracy.

In an infamous case, Chief Justice Rehnquist wrote that even if evidence turns up after a defendant had been convicted and shows that the defendant was probably innocent, the conviction was still final and no hearing to consider the new evidence is required.  So the petitioner, Leonel Herrera, was executed. We call the members of the Supreme Court “justices.” But justice had no sway in their thinking. The Court has revisited the issue several times, but it has not changed the law.

Instead the Court keeps getting worse, moving political power away from ordinary Americans. They let states monkey with election arrangements to prevent opposition supporters from voting. They protect partisan gerrymandering of legislative districts in order to protect incumbent parties.

While eviscerating ordinary voters’ rights, they protect the use of corporate cash to control the political process while attacking the political voice of American workers by shredding their unions’ economic base. That combination of support for corporate power and decimation of everyone else’s has been catastrophic for the electoral strength of ordinary Americans.

Beyond its blatant political partisanship, the Court repeatedly attacks the pocket books of ordinary Americans, protecting corporations from responsibility for the harms they do to customers and workers, protecting them from antitrust laws, undercutting employee wages and hours laws, and making us responsible for contract provisions that we may never have seen much less read or understood or had any realistic choice to decline.

The conservative majority has not been friendly to environmental protections that affect our air, water and warm our globe. Heaven forbid corporations should be responsible for the damage they do.

Past experience indicates that these decisions and the damage they are doing to American democracy and the economic system can fester for a very long time. But these problems are time bombs, so the nation can’t wait.


Anthony Kennedy And The Future Of The SCOTUS

July 4, 2018

Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.

The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend[1] and by overruling limits on political spending by corporations.[2] It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.

The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.

This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.

Still more is at stake. Roe v. Wade,[3] protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.

Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.

Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.

Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.

Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.

The Constitution does not specify the number of justices on the Supreme Court. That is set by law.[4] The number of justices has been set as low as five and as high as ten.[5] Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation.[6] Either way, it is not set in stone.

President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.

This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.

— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.

[1] Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).

[2] Citizens United v. FEC, 558 U.S. 310 (2010).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] 28 USC § 1.

[5] Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.

[6] Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).


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