(A NATION TURNS ITS ANXIOUS EYES TO YOU) (This is the first of a multi-part series about the current supermajority on the Supreme Court)

               DATELINE – Gainesville, Florida, September, 1967. A highly impressionable law school freshman, I am sitting in Con Law I class listening attentively as my professor lectures us on the rudiments of constitutional law. It was near the end of the Warren Court era (1953 – 1969). Earl Warren’s Supreme Court had already outlawed segregation in public schools, required that indigent criminal defendants have legal representation, limited the establishment of religion in public schools, mandated the one-man, one-vote rule, and declared that a criminal suspect has the right to remain silent. My professor spoke in awe of John Marshall, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and other larger-than-life jurists, some still sitting on the court. Thus began my reverence of the United States Supreme Court, albeit an idealistic one, that persisted mostly unabated until February 13, 2016. On that day, Justice Antonin Scalia suddenly died in the last year of President Barack Obama’s second term in office. You know the rest. A highly respected centrist nominated by Obama to replace Scalia, Merrick Garland, was denied not so much as a hearing on his nomination, let alone a vote, because Senate Majority Leader Mitch McConnell pulled off perhaps the most despicable political shenanigan in the history of Senate confirmations by concocting a phony rule that Presidents don’t get to choose Supreme Court Justices during the Presidential election season.[1] Thus, McConnell engineered, with help from the Federalist Society and dark superPAC money, the first step in the creation of a far-right supermajority, the one that currently sits on the court. America has now weathered two and a half terms of the Alito/Thomas Court,[2] formerly known as the Roberts Court. My reverence for the court is now gone, replaced by respect for the court as a constitutional institution, but with no respect for the supermajority now running it. Let me first warn that I’m not a constitutional law scholar, but I am law-trained and have read widely on the Supreme Court in the modern era. Therefore, I’ll skip the rigid analysis of court decisions that led me to my conclusions, and speak my piece, in layperson-like language, on the court, its members, its rulings and its place and status in American society. Part I: Judicial Activism

An activist justice is one who advocates for overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.

I begin with the descriptive word that conservatives once used to express their hatred of the Warren Court – activism. President Richard Nixon vigorously decried Warren’s activism. Republican Presidents since Nixon fell in line. Judges, they liked to say, are supposed to be umpires, not legislators. Judicial restraint and strict construction were their mantras. Not any longer. Now that they have their dream team running the court, conservatives want the supermajority to throw away the strike zone and fling wide the gates – which goes to show that the conservatives’ problem was never with activism; it was more about the liberals being able to exercise it, and not them. Ironically, the liberals today are more inclined to preach judicial restraint and reliance on stare decisis (following settled precedents) than the conservatives. But what is judicial activism? An activist justice is one who advocates for overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. Near the turn of the last century, when conservatives were repeatedly blasting liberal judges as activists, the highly regarded, non-partisan American Judicature Society[3] undertook a study to find out who were the real activists. After intensive research, data collection, and statistical analysis they proclaimed to have found the most activist justice of the past several decades – Antonin Scalia. Scalia was a prolific opinion writer, mostly in dissent during the first half of his tenure, but his words earned him the honor of America’s most activist justice of his time because of his advocacy for the reversal of numerous precedents. Today Samuel Alito and Clarence Thomas are carrying Scalia’s torch.[4] Gorsuch, Kavanaugh and Barrett appear to be falling in line. Roberts, however, vacillates. Activism is not inherently bad. It really depends on whose ox is being gored. To conservatives, Roe v. Wade was bad activism, but to liberals it was good. To liberals, Bush v. Gore was bad, but the conservatives loved it. Correcting bad law, i.e., unconstitutional laws and unfair and unjust precedents, is good activism, a necessary tool for establishing justice.[5] However, activism can be an abuse of power, as evidenced by, I believe, this current supermajority of justices. By hook and crook,[6] they now hold the license to be freewheeling activists, and, after suffering decades of not getting what they want, they appear anxious to use it. Getting what you want is not always a bad thing, but never in my recollection has any court majority been so overtly ready, willing and able to roll back or overturn a laundry list of long-standing precedents they don’t like. The current supermajority’s cheerleading squad, the Federalist Society and simpatico billionaires, is surely going to help out by cultivating cases for the court to have brought before them.[7] Conservatives once whined about progressive activism in cases like Brown v. Board of Education and Roe v. Wade. Let’s review. Brown was not as broad-sweeping as many critics suspect. It did not end segregation in America, only in public schools, and the court had waited years for enough supportive precedent to pile up before taking on public school segregation. It actually took the Civil Rights Act of 1964, a legislative act and not a judicial act, passed 10 years after Brown, to finally and completely wipe out the grossly flawed and repeatedly breached doctrine of separate but equal, announced 66 years earlier by an overwhelmingly racist court in the case of Plessy v. Ferguson. Prior to Roe v. Wade (1973), the abortion issue was being fought in state legislatures, not the courts, and the trend was toward loosening the ill-conceived, antiquated laws against abortion passed in the nineteenth century. Although Roe did not ride to the Supreme Court on a wave of stare decisis, it did arrive on a mounting wave of the changing public perceptions about government intrusion, women’s rights and women’s health. In truth Roe did not rest on the firmest of constitutional grounds when it was decided, but it was repeatedly upheld thereafter and became a settled legal precedent, as acknowledged by turncoats Neil Gorsuch and Brett Kavanaugh while giving misleading testimony during their confirmation hearings. The rules of law announced in Brown and Roe became embedded in our culture and remain favored by most Americans today. The claim of critics that the Brown and Roe decisions were created out of whole cloth is simply not true. Sadly, Roe is now gone, and for one, and only one, reason – the makeup of the Supreme Court changed. For the first time in history, a favored right was taken away because that’s what a supermajority on the court wanted to do, not what they had to do. Another sign of activism on the Alito/Thomas Court is the Dobbs case itself (the case that overturned Roe). Dobbs was about a state law, passed by the Mississippi legislature, banning abortion after 15 weeks. The legislature knew full well its statute violated Roe, but passed it in hopes that challenges to it would reach the Supreme Court. The core issue in the case was whether the 15-week rule should or should not stand.[8] Instead, the supermajority went further and reversed Roe in its entirety. They didn’t have to accept the Dobbs case. They didn’t have to invalidate all of Roe.[9] They just simply wanted to. I must point out that the supermajority is not in lockstep on every issue, but as to the ones that have been festering in conservative guts for years, like Roe, they will likely vote 6 – 3 (or 5 – 4 when Roberts sees his colleagues’ going a little too rogue). Other examples of the conservative bloc’s long-awaited opportunity to have a thorn plucked from its derriere are the recent affirmative action cases against Harvard and the University of North Carolina. They ruled that race, with one narrow exception, can no longer be a factor in college admissions. Legacies? okay; athletes? okay; headed to the military? okay. But race as only one of many factors in a set of holistic criteria? Heavens no! The court apparently believes, and so decrees that we are finally a colorblind nation, when in truth the court is simply blind.[10] It’s Christmas all year round for the Federalist Society and conservative billionaires because the aphorism “you can’t always get what you want” will no longer apply to them for many years to come. Yes, the Warren Court was activist; yes, the Roberts Court is now clearly activist, and it has already lasted longer than the Warren Court era, and will continue to hold sway for many more years – until Roberts, Alito and Thomas are gone (plus Mitch McConnell) and replaced with decent justices appointed by Presidents unbeholden to Leonard Leo and the Federalist Society; and Gorsuch, Kavanaugh and Barrett are at last in the minority.   Coming soon: Part II: Do Polls Matter to the Supreme Court? [1] With a snicker, he later implicitly conceded that such a rule never existed as he was railroading Amy Coney Barrett onto the court just days before the 2020 election. [2] This is not a totally fair characterization, but it’s meant to emphasize that the supermajority tends to coalesce more around Justices Alito and Thomas, two veteran, rigidly hard right justices, rather than the very conservative but institution-minded chief justice. As we’ll see later in footnote 8 below, Roberts is not a strong leader. [3] Their motto is “Advocating for a fair system of justice.” (My emphasis. More about that in a later piece.) [4] Although none of them will match Scalia’s mastery of words, wit and biting rhetoric. Thomas tries but falls short. Alito is just plain awkward and bellicose. [5] The first step toward forming a more perfect union. (See the Preamble to the U.S. Constitution) [6] Had McConnell behaved honorably, Merrick Garland should have been America’s 113^th justice, followed by two Trump appointees, followed by Ketanji Brown Jackson. The present court should be a majority (5—4) conservative court, rather than a 6 – 3 supermajority. That’s significant because, with the former court make-up, Roe would still be standing today, albeit wounded. (See footnote 8.) [7] Most cases get to the Supreme Court through what is called a Writ of Certiorari, in which litigants ask the Supreme Court to hear their case. It takes only four votes to grant the writ. With six current or former Federalist Society members on the court, cherry-picking their plum cases, on the one hand, becomes much easier. (Sorry for the mixed-fruit metaphors.) On the other hand, with only three liberals, they’re hamstrung unless at least one conservative justice joins them. [8] Chief Justice Roberts urged colleagues to exercise judicial restraint and move the fetal viability needle back from 24 weeks to 15, and let the rest of Roe stand. The other five would have none of that because that’s not what they were put on the court to do. That’s why I call it the Alito/Thomas court because Roberts, unlike Warren, no longer seems to be in charge when confronted with the most important case to come along in 50 years. Warren, on one hand, would not publish the Brown decision until he had convinced all eight colleagues to join in a unanimous decision. On the other hand, Roberts could not persuade two colleagues to be good conservatives and exercise a little judicial restraint. [9] Alito’s opinion in Dobbs, despite being hailed by conservatives as a font of wisdom and a masterpiece of jurisprudence, has largely been criticized as not only flawed jurisprudence, and a poorly written opinion at that. His mockery at all the justices in the past who supported Roe was petty and petulant, and to me, beyond the pale of professionalism. [10] More about racial colorblindness in a future part in this series. Also, you ought to read Justice Ketanji Brown Jackson’s dissent in Students for Fair Admissions v. UNC – a great piece of Supreme Court literature. Here’s the link: https://www.supremecourt.gov/opinions/22pdf/20-1199_l6gn.pdf. Her dissent begins at page 209.