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.