LATEST TALES FROM INSIDE OUR DYSFUNCTIONAL SUPREME COURT

(First in a Six-part Series)

Now, for the first time since polling on the Supreme Court was initiated in 2000, a Gallup poll shows the high court’s approval rating has dipped to its all-time low of 40%.[1] A lot of us, and not just Supreme Court nerds like me, are concerned about, perhaps unhappy with, or just downright disgusted with our high court. Lately, I’ve read six intensely researched, well-reasoned books about the court and I want to share with you, in six brief articles, my takeaways from them. My hope is that this series will help you further understand your own, and the public’s concerns about the disturbing decline in public trust in what was once perennially considered the most stable and respected branch of government. It’s true that all six books come from a center-left viewpoint, but I can assure my conservative friends that their reporting, claims and conclusions are supported with credible factual evidence which can’t be blithely ignored.

First, here are the books:

The Case Against the Supreme Court, and Worse Than Nothing: The Dangerous Fallacy of Originalism, two books by Erwin Chemerinsky, Dean and Distinguished Professor of Law at Cal Berkeley Law School, and one of the preeminent constitutional scholars of our time.

               Nine Black Robes, Inside the Supreme Court’s Drive to the Right and its Historic Consequences, by Joan Biskupic, an accomplished and well-respected journalist who has extensively covered the Supreme Court.

The Supermajority, How the Supreme Court Divided America, by Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, a nonprofit law and policy institute.

The Scheme, How the Right Wing Used Dark Money to Capture the Supreme Court, by Senator Sheldon Whitehouse (D-RI). Member of the Senate Judiciary Committee and perhaps the Senate’s leading authority on the Supreme Court. In addition, he has written numerous amicus curiae briefs to the Supreme Court.

Tyranny of the Minority: Why American Democracy Reached the Breaking Point,[2] by Steven Levitsky and Daniel Ziblatt, both political scientists and professors at Harvard; and authors of the highly acclaimed book How Democracies Die.

Takeaway #1. This Isn’t Your Mother’s or Grandfather’s Supreme Court.

No one can dispute that presidents have always been political to some degree in their selections of justices to serve on the Supreme Court. Likewise, it had been customary for the Senate to show great deference to a sitting president’s selection privilege.[3]  That bipartisanship has changed dramatically in the modern era. While only two presidents since 1888 have failed to win a majority of the popular vote,[4] these same two presidents are responsible for placing five of the current nine members of our unpopular Supreme Court, including Chief Justice John Roberts. Even though George W. Bush appointed his two justices (Roberts and Alito) during his second term, in which he won the popular vote, he first reached office in an election in which he lost the popular vote. Trump appointed three (Gorsuch, Kavanaugh and Barrett) thanks to the deplorable trickerations of Mitch McConnell. In an honorable, ethical world, Trump should have only been able to appoint just one.[5] These five justices who ascended to the highest bench only through the grace of a superannuated Electoral College, and not the will of the majority of voters, together with a sixth member, Clarence Thomas, comprise what has become known as the Supermajority. Consequently, two thirds of the court represent the far-right views of a minority of Americans, and they are taking a wrecking ball to long held precedents by claiming they are merely making right what has always been wrong – and they’re not done yet.

In the last 50 years some trends have emerged. First, more justices are being taken from lower federal appellate courts, and most of them came to those courts from cloistered lives within political government jobs or in academia. Accordingly, presidents are appointing justices whose ideological track records are well known to them through their writings and speeches, thus assuring a higher degree of ideological compatibility. Since Earl Warren, a former governor, joined the court 70 years ago, only Sandra Day O’Connor has ever held elective office. The result is a Supreme Court judiciary composed of men and women with limited life experiences out in the real world.

Second, is what I call the “Ronald Reagan legacy factor.”[6]  Presidents now are choosing younger nominees who are serving long past the USA’s customary retirement age of 65, and this is nowhere more evident than the five currently-serving justices who were appointed by presidents who lost the popular vote.[7]  The average length of Supreme Court service is 16 years and getting longer.[8]  If the six members of the Supermajority stay in office until they reach the average age at which justices retire (around age 79), their average length of service will be 28 years, four months. Accordingly, presidential fingerprints can now be found on governmental policy for as long as two decades, or more, after they leave office.

And now there is the Federalist Society factor. Senator Whitehouse’s book shows how Federalist Society members and their billionaire associates are using unprecedented sums of dark money[9] to put far-right, ideologically hidebound justices on the court. Unlike their non-Federalist Society predecessors, Supermajority justices are less likely to approach cases with a sufficiently open mind,[10] and more likely to remain bound to the creed of the organization whose members and money got them there.

Unlike any court in our history, today’s Supreme Court is comprised of a majority of justices, most of them appointed by presidents who could not win the popular vote, and who will likely serve on our highest court for decades after their appointing president has left office, and who will remain steadfastly beholden to an organization whose goal is to take our nation back to what it considers to be its version of America’s constitutional jurisprudence in the eighteenth century.

The Takeaway: This court is upside down because what ought to be the minority view of the Constitution is becoming and will be the law of our land for many years to come.

Next: Originalism is Not One of the Ten Commandments

[1] Despite three upward spikes along the way, the trend had been a decline from 60% in 2000 to 40% in 2023.

[2] If you choose only one book on this list to read for yourself, I would recommend this. The title should say it all. [LINK]

[3] George Washington, for example, had little trouble getting all fourteen of his nominees confirmed.

[4] George W. Bush (2000), Donald Trump (2016)

[5] Two, if you agree that it’s okay to both nominate and confirm a justice while a presidential election is in full swing. Nevertheless, McConnell’s despicable nine-month hijacking of President Obama’s nomination of Merrick Garland should never have happened.

[6] Reagan was the first president who, in my memory, emphasized appointing younger justices because he wanted to imprint his personal philosophy well beyond his years in office. Consequently, Sandra Day O’Connor joined the court at age 51; Scalia at age 50; and Kennedy at 52. They served a total of 95 years on the court – longer had not Scalia died in office. Kennedy retired in 2018, 30 years after Reagan left office.

[7] Roberts was 50 when confirmed, Alito 55, Gorsuch 49, Kavanaugh 53, and Barrett 48. Incidentally, Sotomayor was 55, Kagan 50 and Jackson 51. And Thomas? 43.

[8] The last justice to retire from office with less than 16 years of service was Lewis Powell in 1987. He served fifteen years, five months.

[9] Money that cannot easily be traced back to the actual donors’ pockets, so as to hide their true identity.

[10] As a former judge, I can assure you that no judge approaches every case with a totally open mind. We’re human. However, some judges are less openminded than others, and the evidence convinces me that some of them are sitting on the Supreme Court.