The Roberts Court

In 2005, with the retirement of Justice Rehnquist, John Roberts was named to the position of Chief Justice by Republican president George W. Bush. Another change in Court personnel occurred in 2008 when Sandra Day O’Connor retired and was replaced by Justice Samuel Alito. With Roberts and Alito, the Court had an even more solid “conservative” majority than before – the result being that more than ever in a 5-4 decision a justice’ vote would be determined by the party of the president who appointed him or her.

It was Ronald Reagan who named the first woman justice to the Supreme Court with the appointment of Sandra Day O’Connor in 1981. It was also Ronald Reagan who began the practice of Republican presidents’ naming ideological, conservative Roman Catholics to the Supreme Court with the appointment of Antonin Scalia in 1986. This practice on the part of Republican presidents has indeed been followed faithfully as we have to include Neil Gorsuch in this group of seven – though an Episcopalian today, Gorsuch was raised Catholic, went to parochial school and even attended the now notorious Georgetown Prep. Just think: with Thomas and Gorsuch already seated, the Brett Kavanaugh appointment brings the number of Jesuit trained justices on the Court up to three; this numerologically magic number of men trained by an organization famous for having its own adjective, plus the absence of true WASPs from the Supreme Court since 2010, plus the fact that all five of the current “conservative” justices have strong ties to the cabalistic Federalist Society could all make for an interesting conspiracy theory – or at least the elements of a Dan Brown novel.

It is said that Chief Justice Roberts is concerned about his legacy and does not want his Court to go down in history as ideological and “right wing.” However, this “conservative” majority has proven radical in their 5-4 decisions, decisions for which they then have full responsibility.

They have put gun manufacturers before people by replacing the standard interpretation of the 2nd Amendment that went back to Madison’s time with a dangerous one by cynically appealing to “originalism” and claiming the authority to speak for Madison and his contemporaries (District of Columbia v. Heller 2008)

Indeed, with Heller there was no compelling legal reason to play games with the meaning of the 2nd Amendment – if the over 200 years of interpretation of the wording of the amendment isn’t enough, if the term “militia” isn’t enough, if the term “bear arms” isn’t enough to link the amendment to matters military in the minds of the framers, one can consult James Madison’s original text:

    “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” [Italics added].

The italicized clause was written to reassure Quakers and other pacifist religious groups that the amendment was not forcing them to serve in the military, but it was ultimately excluded from the final version for reasons of separation of church and state. This clause certainly indicates that the entirety of the amendment, in Madison’s view, was for the purpose of maintaining militias: Quakers are not vegetarians and do use firearms for hunting. Note too that Madison implies in this text and in the shorter final text as well that “the right to bear arms” is a collective “right of the people” rather than an individual right to own firearms.

The radical ruling in Heller by the five “conservative” justices has stopped all attempts at gun control, enriched gun manufacturers, elevated the National Rifle Association to the status of a cult and made the Court complicit in the wanton killings of so many.

The “conservative” majority of justices has overturned campaign finance laws passed by Congress and signed by the President by summoning up an astonishing, ontologically challenged version of the legal fiction that corporations are “persons” and imbuing them with new First Amendment rights (Citizens United v. FEC 2008).

Corporations are treated as legal “persons” in some court matters, basically so that they can pay taxes and so that the officers of the corporation are not personally liable for a corporation’s debts. But, there was no compelling legal reason to play Frankenstein in Citizens United and create a new race of corporate “persons” by endowing corporations with a human-like right to free speech that allows them to spend their unlimited money on U.S. political campaigns; this decision is the first of the Roberts Court’s rulings to make this list of all-time worst Supreme Court decisions, a list (https://blogs.findlaw.com/supreme_court/2015/10/13-worst-supreme-court-decisions-of-all-time.html ) compiled for legal professionals. It has also made TIME magazine’s list of the two worst decisions in the last 60 years and likely many other such rankings. The immediate impact of this decision has been a further gap between representatives and the people they are supposed to represent; the political class was at least somewhat responsive to the voters, now they are only responsive to the donor class. This likely works well for the libertarians and conservatives who boast “this is a Republic, not a Democracy.”

These same five justices have continued their work by

  • usurping Congress’ authority and undoing hard-fought for minority protections from the Voting Rights Act by adventuring into areas of history and politics that they clearly do not grasp and basing the decision on a disingenuous view of contemporary American race relations (Shelby County v. Holder 2013),
  • doubling down on quashing the Voting Rights Act five years later in a decision that overturned a lower court ruling that Texas’ gerrymandered redistricting map undercut the voting power of black and Hispanic voters (Texas Redistricting Case 2018)
  • breaching the separation of Church and State by ascribing “religious interests” to companies in a libertarian judgment that can justify discrimination in the name of person’s individual freedoms, the “person” in this case being a corporation no less (Burwell v. Hobby Lobby Stores 2014)
  • gravely wounding the labor movement by overturning the Court’s own ruling in a 1977 case, Abood v. Detroit Board of Education, thus undoing years of established Labor Law practice (Janus v. AFSCME 2018) – a move counter to the common law principle of following precedent.

These six decisions are examples of “self-inflicted wounds” on the part of the Roberts Court and can be added to a list begun by Chief Justice Charles Evans Hughes, a list that begins with Dred Scott. The recent accessions of Neil Gorsuch and Brett Kavanaugh to seats on the Court may well make for even more decisions of this kind.

This judicial activism is indeed as far away from the dictionary meaning of “conservatism” as one can get. Calling these activist judges “conservative” makes American English a form of the “Newspeak” of Orwell’s 1984. The Court can seem to revel in its arrogance and its usurpation of power: Justice Scalia would dismiss questions about Bush v. Gore with “Get over it” – a rejoinder some liken to “Let them eat cake” – and he refused to recuse himself in cases involving Dick Cheney, his longtime friend (Bush v. Gore, Cheney v. U.S. District Court).

The simple fact is that the courts have become too politicized. The recent fracas between the President and the Chief Justice where the President claimed that justices’ opinions depended on who appointed them just makes this all the more apparent.

Pundits today talk endlessly on the topic of how “we are headed for a constitutional crisis,” in connection with potential proceedings to impeach the President. But we are indeed in a permanent constitutional crisis in any case. Thus, there is a clear majority in the country that wants to undo the results of Citizens United and of Heller in particular – both are decisions which shot down laws enacted by elected representatives. Congressional term limits are another example; in 1995 with U.S. Term Limits Inc. v. Thornton, the Court nullified 23 state laws instituting term limits for members of Congress, thereby declaring that the Constitution had to be amended for such laws to pass judicial review.

In the U.S. the Congress is helpless when confronted with this kind of dilemma; passing laws cannot help since the Court has already had the final say, a true Catch-22. This is an American constitutional problem, American Exceptionalism gone awry. In England and Holland, for example, the courts cannot apply judicial review to nullify a law; in France, the Conseil Constitutionel has very limited power to declare a law unconstitutional; this was deliberately engineered by Charles de Gaulle to avoid an American style situation because per DeGaulle “la [seule] cour suprême, c’est le peuple” (The only supreme court is the people).

So what can the citizen majority do? The only conceivable recourse is to amend the Constitution; but the Constitution itself makes that prospect dim since an amendment would require approval by a supermajority in both houses of Congress followed by ratification by two-thirds of the states; moreover, states with barely 4% of the population account for over one-third of the states, making it easy and relatively inexpensive for opposition to take hold – e.g. the Equal Rights Amendment. Also, those small, rural states’ interests can be very different from the interests of the large states – one reason reform of the Electoral College system is an impossibility with the Constitution as it is today. Only purely bureaucratic measures can survive the amendment ratification process. Technically, there is a second procedure in Article V of the Constitution where a proposal to call a Constitutional Convention can be initiated by two-thirds of the states but then approval of an amendment by three-fourths of the states is required; this procedure has never been used. Doggedly, the feisty group U.S. Term Limits (USTL), the losing side in that 1995 decision, is trying to do just that! For their website, click https://www.termlimits.com/  .

What has happened is that the Constitution has been gamed by the executive and judicial branches of government and the end result is that the legislative branch is mostly reduced to theatrics. Thus, for example, while the Congress is supposed to have the power to make war and the power to levy tariffs, these powers have been delegated to the office of the President. Even the power to make law has, for so many purposes, been passed to the courts where every law is put through a legal maze and the courts are free to nullify the law or change its meaning invoking the interpretation du jour of the Constitution and/or overturning legal precedents, all on an as needed basis.

This surge in power of the judiciary was declared to be impossible by Alexander Hamilton in his Federalist 78 where he argues approvingly that the judiciary will necessarily be the weakest branch of the government under the Constitution. But oddly no one is paying attention to the rock-star founding father this time. For example, this Federalist Paper of Hamilton’s is sacred scripture for the assertive Federalist Society but they seem silent on this issue – but that is not surprising given that they have become the gatekeepers for Republican presidents’ nominees for the Supreme Court.

Americans are simply blinded to problems with the Constitution by the endless hymns in its praise in the name of American Exceptionalism. Many in Europe also argue that the way the Constitution contributes to inaction is a principal reason that voter participation in the U.S. is far lower than that in Europe and elsewhere. Add to that, the American citizen’s well founded impression that it is the money of corporations, billionaires and super-PACs in cahoots with the lobbyists of the Military Industrial Complex, Big Agriculture, Big Pharma, Big Oil and Big Banks that runs the show and you have a surefire formula to induce voter indifference. Even the improved turnout in the 2018 midterm elections was unimpressive by international standards.

This is not a good situation; history has examples of what happens when political institutions are no longer capable of running a complex nation – the French Revolution, the fall of the Roman Republic, the rise of Fascism in post WWI Europe … .

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