Supreme Court – Ditch It

I used to teach a course on the US Supreme Court, starting around 1990 and until I retired almost three decades later. I’ve lost my patience with it.

The Court betrayed any sense that it should be impartial or nonpartisan, consistently favoring Republicans, from its choice of Bush over Gore in 2000, against all the rules about how to run a recount,[1] to its refusal to honor the constitutional text of the insurrection clause in 2024, and its refusal in the interim to curb the state legislative gerrymandering that gave Republicans control of state legislatures, regardless of the wishes of the voting public.

The Court betrayed any respect for precedent and any concern for women when it overturned Roe v. Wade and left women scrambling for reproductive care.

It has consistently favored big business over Americans of ordinary income.[2]

And it threatened the core of our democratic system with a series of decisions authorizing people to carry guns in public, guns that threaten nonpartisan election workers, elected representatives that conservatives dislike, and people at demonstrations advocating causes they despise. The ultimate implication of their decisions was the insurrection at the Capitol which the Court then blessed by refusing to allow states to keep the inciter-in-chief off the presidential ballot.

I no longer have any confidence in the Court to get anything right, including to protect our democratic system of government.

So what is to be done?

Here is the text of the Constitution’s provision for the Court:

“The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.”

Notice what is protected – their tenure “during good behaviour,” and their salaries “which shall not be diminished.” The Constitution says we can’t touch those.

Notice that nothing else is protected – not their courthouse, their staff, their equipment, the marshals and police that protect them. The courthouse went up in the 20s. A century later it can come down. Everything else, including the upkeep of the building, is part of the budget. The budget can be zeroed out. And money not appropriated cannot be spent. Republicans know that very well, which is why they keep holding up the budget and it’s time Democrats took that knowledge to heart. Stop the Court. Shut it down.

The Court has been a tool of devotees of the so-called “Lost Cause,” the cause of slavery and disunion, consistently dismantling the voting rights of African-Americans and promoting gun rights that only rebels could appreciate. When the NRA  was taken over by insurrectionists, it found things it wanted the Court to do to help them dismantle the US in favor of the Confederacy.

Except for the Warren Court, the Supreme Court has been more of a problem than a help. To heck with mincing words – it’s time to call this outrage treason, dismantle the Court, take it out of rebel hands, and then maybe we can reorganize and put it in better hands. No, I wish I were kidding but I’d do whatever it takes to get rid of the Roberts Court. At the very least, I’ll do what I can to keep Trump, who appointed three of its members, out of the White House.

— Steve Gottlieb – If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on March 26, 2024.

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[1] Stephen E. Gottlieb, Bush v. Gore Typifies the Rehnquist Court=s Hostility to Voters, in The U. S. Supreme Court and the Electoral Process 58 (Washington, D.C.: Georgetown Univ. Press, David Ryden, ed., 2^nd ed., rev., 2002).

[2] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 212-26 (New York: NYU Press 2016).

Controlling Our Bodies Requires Saving American Democracy

— For the podcast, please click here. —

Most people don’t realize that Roe v. Wade was the brainchild of two Nixon appointees, Justice Harry Blackmun and Chief Justice Warren Burger – the so-called Minnesota twins because they had grown up together in Minnesota. Blackmun had been counsel to the Mayo Clinic and he and Burger had corresponded about abortion rights well before Roe v. Wade came to the Court. So they were ready and waiting for it.

As a moral issue Roe was about people’s rights to control their own bodies. It has never seemed a close moral case to me. But the legal implications of litigation are often much more complex than the moral issues. Roe was controversial from the beginning even among liberal law professors. I particularly remember an article by John Hart Ely criticizing the legal foundations of Roe. And Gerald Rosenberg famously argued in The Hollow Hope that women would have had a more secure right to abort without Roe. I’m in print, in an article with my friend David Schultz, disagreeing with Rosenberg.

But I want to make a different point than the ones that Ely, Rosenberg, or David and I made, that it is important to understand the price we have paid for the freedom we believe in and what that means for the future.

When Roe was decided, the Court was mopping up some of the civil rights cases in the midst of a backlash. Many of us remember the White Citizens Councils and racist violence. But most of the country was appalled. The racists had no chance of taking over the country. They had no claim to the moral high ground, and even its opponents understood that. Segregation, lynching, denials of voting rights were basically indefensible.

But Roe was a bugle call to many religious groups. The racist and religious groups reached different people despite some overlap. Church groups had a religious fervor and an organizational engine that the racists could not achieve by themselves. Karl Rove and others put many of them together. In doing so, they created a movement that threatens the core of American self-government.

Racism clearly underlies a great deal of what is happening now in the country and a large part of support for Mr. Trump. But the religious fervor of church groups built a separate movement around gender and sexual issues before some of the religious groups merged with the racists. The combination is lethal.

By nationalizing the social, gender and sexual issues on top of the Civil Rights revolution, the Court made a large group of Americans willing to attack American democracy. It was once possible, though unfair and expensive, for people who believed in the freedom to control their own bodies to rely on the law in states like New York and Massachusetts even though they’d be wise to stay out of Mississippi, Alabama, Texas and other states that had tried to destroy the country in the Civil War. But now, freedom-loving people cannot be sure of freedom anywhere in the country when American popular government is under attack by racists who recognize no rights but their own. What was a religious movement aimed at a moral issue is now fueling an attack on democracy itself.

Let’s be clear – no dictatorship, no government based on aiming weapons at its own people, supports women’s rights, privacy rights or sexual rights. In other words, with their sights trained on popular government, everything is at risk, all the freedoms we care about. The price of protecting everyone’s control of their own bodies is that we all have to fight for democracy with everything at our disposal.

— If you think I’m on target, please pass it on. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 26, 2022.

This Dishonorable Court

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

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).