The decline and fall of the Supreme Court

By TheCriticalMind | 2 October 2022
Daily Kos

(Photo: Dariana / Flickr / CC BY-NC-ND 2.0)

When the anti-democracy Supreme Court stuck its big fat thumb on the scales and gifted the presidency to George W. Bush in 2000, the left did not like the decision. But they accepted that SCOTUS was playing by a set of rules. They accepted that the Court‘s justification for the decision was legitimately extrapolated from the Constitution. Even if there was a sense that a majority of the justices were squinting at the document sideways.

But now, as the Court starts a new term, most Americans think SCOTUS has come unmoored from legal reason and is just making things up to advance an extreme right-wing and overtly conservative Christian agenda.

After the Bush decision, 50% of Americans had a high degree of confidence in how the Court handled its responsibilities. Today — and this number is from a poll taken before the Dobbs decision was inflicted on American women — only 25% of American think the same.

What is remarkable is that, if you consider that 35% of voters are solid MAGAs, even some of them must not approve of what this illegitimate Court is up to. I say illegitimate because by the Constitution and custom Obama should have selected a Justice to replace Scalia. And if McConnell stuck to his rules, Biden would have picked a Justice to replace Ginsburg.

So today, SCOTUS is a nakedly political creation populated by a majority of justices who have no interest in the Constitution but are solely motivated to stamp their reactionary beliefs on the country regardless of what the people think.

Purists will argue that SCOTUS should give popular opinion no weight. But while the law may be an abstraction to unelected, usually Ivy League, quasi-intellectuals, their decisions affect the lives of real people. For most of its history, the Court, left or right, has borne that in mind even as they handed down decisions that necessarily angered some percentage of the population.

Not anymore. It is not as if these smug, self-declared originalists have stuck their fingers in their ears and stopped listening to anyone. No. They have instead narrowed their attention to only the most extreme right of the political spectrum. And it is to those incipient fascists and temple-wreckers that they pay attention.

The Court lacks even the minor decency to bind itself to the ethics rules that guide the rest of the federal Judiciary. A Justice can share pillow talk with a spouse crazed with election conspiracies. And so insane she texted Mark Meadows, the couch-surfing, ex-WH Chief of Staff, that the

“Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

Does Ginni Thomas not know there are cells in Guantanamo? And why has there been no confirmation of a round-up of these bad apples?

Despite the evident, fantastical extremism of his wife, Clarence Thomas refuses to recuse himself from cases arising from the seditious and violent response to a legitimate election. When Trump sued to block the J6 committee from obtaining presidential records, Clarence Thomas was the sole dissenter in the Court’s 8 — 1 decision telling the 2020 loser to go and sit down.

Ginni said his act was nothing to do with her. She claimed Clarence and she have their “own separate careers, and our own ideas and opinions too.” And “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

Bullshit. Besides, it does not matter. Even if what she says is true, the appearance of a conflict of interest is a death blow to the Court’s legitimacy. Most married people act in a way their spouse approves of, even if they do not think they are doing so. As the old and sexist trope has it, “Happy wife. Happy life.”

Furthering the Court’s slide into the sewer is the fact that

  • Justices now routinely lie — or dissemble — to get on the Court. (Thomas, Gorsuch, Kavanaugh, Barrett)
  • Senate Republicans gloss over credible accusations of sexual abuse in the workplace and rape in conservative candidates. (Thomas, Kavanaugh)
  • Ignore questions about how a Justice’s debt mysteriously disappears. (Kavanaugh)
  • Crow and make jokes in public about decisions that strip decades-old rights away from some Americans (Alito)

Chief Justice John Roberts thinks the public’s scorn is misplaced. That SCOTUS is held in low regard because many do not agree with its decisions. As this head-in-the-sand thinker said to a gathering of Judges in Colorado on the verge of the Court’s new term,

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is. Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

This is balderdash. Whatever a Court decides will be objectionable to some. What Americans think is dirty pool is the process by which the conservative “umpires” get on the bench.

The reactionary Justices are often picked by Presidents who received a minority of the vote. And are confirmed by Senators representing fewer Americans than Senators who object to this partisan court packing.

As Justice Elena Kagan pointed out in a talk at the Northwestern School of Law,

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem.”

The Supreme Court has become a bought and paid-for branch of the Republican Party. It has repeatedly backed anti-democracy measures. It has allowed corporations and shadowy anonymous groups to flood politics with money. And it has signed off on right-wing gerrymandering and vote suppression.

It is patently apparent that the umpires are now working for the bookmakers.

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