Takeaway #3: They’re Protecting the Wrong Minorities.
Liberal democracy is not only grounded in majority rule, but it also seeks to protect certain minorities from oppression by the majority. If America today was governed by majority rule, then abortion prior to fetal viability would be a matter between the mother, her doctor and her God; there would be universal background checks on all purchases of firearms; private ownership of military-style semi-automatic assault rifles would be banned or heavily regulated; and false, artificial barriers designed to prevent the free exercise of the right to vote would be abolished. These things would be so, not necessarily because each one of them is the just and proper thing to do, which I believe all of them are, but because each one reflects the will of the majority of Americans. However, none of these majoritarian priorities are the law of the land because of the odd circumstance that lawmaking authority currently lies with a minority of politicians who oppose them. Aiding and abetting this illogical inconsistency is the John Roberts Supreme Court.
In 2022, in Dobbs v. Jackson Women’s Health Organization, in a narrow, contentious 5 – 4 decision, the court officiously reversed Roe v. Wade, a case decided 50 years ago by a 7 – 2 majority.[1] The Roberts Court didn’t have to negate the highly popular abortion policy established in Roe, but it wanted to because their views on reproductive rights were in line with a minority within of our population who call themselves pro-life.[2] Instead of protecting the health rights of women involved in unwanted or dangerous pregnancies – a minority worth protecting – the court chose instead to honor the wishes a minority of Americans that prefer to have state governments[3] be in charge of women’s reproductive health decisions. The anti-abortion minority will claim they’re also protecting a worthy minority, that is, the unborn. I get that, but the unborn are not legal citizens or persons,[4] but their mothers are. The reality is this: Americans have a binary choice when it comes to pre-viable fetuses: either Mom is in control of her body or the government is. I’m on Mom’s side. The Roberts Court isn’t.
In 2013, the Roberts Court in Shelby County v. Holder abolished the preclearance provisions in the 1965 Voting Rights Act,[5] claiming they were no longer necessary, notwithstanding overwhelming evidence from an exhaustive Senate investigation to the contrary. The proof of its misjudgment came immediately after Shelby County was decided. Most of the nine states subject to preclearance (all but two of them former Confederate states), enacted new voter suppression laws. Preclearance was enacted to protect the right of people of all colors, a minority, to vote. The Roberts Court decided it was time to protect another “minority”: conservative, white, mostly male politicians who fear they cannot win elections without voter suppression laws. It’s clear to me which minority deserves protection.
In District of Columbia v. Heller (2008), and New York State Rifle & Pistol Assn. v Bruen (2022), the court gave the green light to a minority of persons[6] who oppose the wishes of most Americans who favor reasonable gun safety laws to protect their right to safe homes, neighborhoods, churches, workplaces, and communities. So, an ever-growing number of victims of felonious gun violence have to lose their inalienable right to be alive in order for the liberty interests of those who proclaim that murder and gunshot victims are unavoidable collateral damage to the more important right of having easy access to all kinds of dangerous firearms. The Roberts Court could have – and should have – narrowly construed the Second Amendment, and let the individual states craft their own gun safety laws to fit their own particular circumstances,[7] but instead it nationalized gun rights and safety limits under the umbrella of a constitutional amendment that is virtually impossible to repeal or further amend. That makes the minority protecting “gun non-safety” very happy.
These are just three examples of the Supreme Court protecting miscreant minorities to the detriment of the majority. In other cases, the Roberts Court has protected a billionaire political donor’s ability to inconspicuously manipulate government through the unlimited power of their fortune; has protected politicians who get to choose their voters, rather than vice versa, by refusing to hear cases on partisan gerrymandering; has protected big corporations from being taken to court by consumers seeking a remedy from an alleged harm[8]; and has protected industries that put profits over clean air and water by nullifying certain environmental regulations.
The Takeaway: The health, safety and wellbeing of pregnant women, voters who are people of color, school children under threat of being murdered, consumers without effective remedies against big business, and people living near air and water pollution, all minority groups who should be entitled to the protection of the law, are under threat from certain other minority groups (the ultra-rich, the far right, the privileged and the powerful) and the Roberts Court is mostly on the side of the latter to the disadvantage of the former.[9]
Next: Life Tenure for Federal Judges Must Go
[1] Of the seven justices who decided Roe v. Wade, three were appointed by Democratic presidents and four by Republican presidents. Incidentally, all seven justices were appointed by presidents who won a majority of the popular vote. In Dobbs, all five justices in that narrow majority were appointed by Republican presidents, and four of the five were appointed by presidents who failed to win the popular vote.
[2] I prefer not to call them pro-life because only a minority within this minority truly value all life from conception to death. The rest I would call “pro-birth” because once the child has emerged from the birth canal, the pro-life movement’s interest in the lives and well-being of infants and all minor children diminishes.
[3] If this minority gains control the Congress and White House, there would be national abortion ban which would supersede all state laws.
[4] Except maybe in Alabama.
[5] A state subject to preclearance had the burden of proving to a federal court that the proposed law would have neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.
[6] And what an all-star line-up this minority consists of: self-interested gun manufacturers, the NRA, extravagantly paid pro-gun lobbyists, spineless politicians, overzealous gun enthusiasts, violent felons, and insane mass murderers.
[7] States with high urban populations, like New York, need gun safety laws that a state like Wyoming do not, but a Supreme Court decision based on the Second Amendment must apply nationwide.
[8] For example, in order to obtain most credit cards, you’re forced to accept the thousands of fine-print words called “Terms and Conditions.” One of the terms is waiving your right to sue over any dispute with the company, and instead, you must submit to arbitration. Credit card companies, like Visa for example, use, and pay thousands of arbitrators for their services each year. The aggrieved consumer may go to arbitration once in a lifetime. Does that look like a level playing field to you? Apparently, the Roberts Court thinks so.
[9] If you only want to read one of the books cited in this series, I recommend Tyranny of the Minority: Why American Democracy Reached the Breaking Point, by Steven Levitsky and Daniel Ziblatt.
Hi Judge:
Your latest missive on the nefarious nine reminds me that we live in an era where one side fights asymmetrically, and yet we continue to respond conventionally. We simply do not have the capacity to effectively fight against a group of people whose legitimacy was sacrificed at the altar of their Federalist Society ideology long ago. We have been utterly ineffective in dealing with it, and will continue to be totally feckless for as long as we insist on harboring the illusion that SCOTUS is operating in good faith.
I’m quite certain that John Roberts was very pleased with himself during his confirmation hearing when he conjured that fraudulent description of a judge as being nothing more than “an umpire who calls balls and strikes.” Curious thing, though, is that he has no explanation for why his strike zone differs so greatly depending upon who’s on the mound and who’s in the batter’s box. When a corporation is pitching to a worker, Roberts will call a pitch in the dirt a strike. But when the roles are reversed, and a worker pitches to a corporation, Roberts’s strike zone becomes the size of a postage stamp.
Roberts also testified under oath to Congress about his belief in and reverence for the rule of law and stare decisis. We’ve known for two decades that he was lying when he said that. And when you lie under oath to Congress, you commit perjury and would ordinarily be prosecuted. Not to worry, though, for all of them, Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett learned their lesson long ago from Robert Bork. If you want to get a seat on the bench, you need only lie about all that “belief in precedent” crap. Don’t worry about potential consequences for perjury, for none will ever be imposed.
Do you remember the Mike Tyson v. Evander Holyfield boxing matches? The first ended with Holyfield winning by a TKO in the 11th round. The second bout, a.k.a. “The Bite Fight,” was refereed by former boxer and Nevada judge Mills Lane. Early in the third round, after Tyson was once again getting his ass kicked, he decided he had had enough, and during a clench, he bit off the top of Holyfield’s right ear and spat it onto the ring apron. Lane wanted to disqualify Tyson on the spot, but relented as he remembered the Marquess of Queensberry Rules that govern boxing.
Conspicuously absent from those 19th century rules is a proscription on ear biting. (It evidently never occurred to the Marquess that ear biting might ever occur in a ring.) After Lane was assured by a ring doctor that the profusely bleeding Holyfield could continue, he took away two points from Tyson and let the match proceed.
Then later in the third round, Holyfield was livid and he pummeled Tyson so hard that it became clear to Tyson he had only one option left: bite Holyfield’s other ear. After he did that, a brawl between the two corners ensued and about 20 minutes later, Lane officially disqualified Tyson. He was then indefinitely suspended.
Applied to our current political climate, Trump is Tyson and we are Holyfield. But there is no Mills Lane to referee this contest. Instead, we have a compliant media that insists on perpetuating false equivalencies like “Yeah, I know Trump’s been indicted on 91 felonies, but did you know that Joe Biden is old?” All media seems to insist the Democrats must abide by the Marquess of Queensberry Rules, while gleefully reporting about Trump’s constant ear biting.
Nowhere is that more evident than in the conduct of the Supreme Court. You’ve cited a few cases that really get under my skin, but truth be told, the worst decisions in the history of the court have been rendered since I graduated from law school in 1981. And at the current pace of their lawlessness, the court will soon render my entire law school education moot.
And for a guy who spent a good portion of his 20-year career in government advising judges on ethics, I am utterly disgusted by the fact that these nefarious nine have no ethics at all. They are the only officials in government who are truly lawless. Today’s decision on the Colorado ballot access case proves my point. At least four of the justices should’ve recused themselves. And the others? Well, after lecturing and scolding us about judicial activism, originalism and textualism, plain meaning, apparently all of that nonsense has been replaced by their true guiding star: Niccolò Machiavelli.
They start at the end with the decision, and then justify the means that take them there later, and not by the record before them but rather by backfilling the foundation with a bunch of pseudo-intellectual and hypocritical flummery. Truly sad situation when I see what these people have done to our beloved profession.
Steve, what a lot to process! Can’t disagree on much of anything, especially the your comments on the media, Roberts’s hypocrisy, and how nominees falsify their confirmation testimony. Alito, and Trumps three picks all said they will honor precedent and settled law, and then join in an opinion that declared Roe v. Wade has always been wrong from its very inception 50 years ago. That tells me they had their minds made up on Roe well before they were even nominated, and I’m positive they did not reach their decision only after reading the briefs and hearing the oral arguments. And Thomas saying he had never discussed Roe when the decision came down while he was in law school? C’mon. Finally, I assume you implied that that Trump’s three picks should have recused from the Colorado case. Was it because Trump appointed them? If it’s that alone, I disagree, but I’m open to one of Steve Hooper’s always well-reasoned rebuttals. Thomas, however, definitely should have recused. Thanks for your comment.
Alito and company wrote that “Roe was egregiously wrong from the start.” That means that not only had they all made up their minds long before hearing the case, but long before their nominations (as you accurately note). It also tells me that six justices, Thomas, Roberts, Alito, Gorsuch, Kavanaugh and Barrett, committed perjury.
That observation also helps inform my view on recusal. Thomas is out because he (along with his best friend and confidant, Ginni) is also an insurrectionist. Kavanaugh is out because of his obsequious (and preposterous) assertion that”No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” What a crock. If that doesn’t present the appearance of partiality, I don’t know what doesn’t.
And Kavanaugh, Barrett and Gorsuch are all out not solely because of the Trump nomination (I agree with you there), but also because they are all Federalist Society members. The appearance of impropriety through their connection to that cult and its leader, Leonard Leo, requires recusal.
All that said, I commend to your reading the amicus brief filed by Judge Luttig. It is a work of art. I disagree with him on many issues, but not on this one. https://www.supremecourt.gov/DocketPDF/23/23-719/299107/20240129171610494_23-719_Amici%20Brief.pdf
Good points, Steve. I’ll have more to say after I read Luttig’s amicus brief. Thanks again. You’re just the guy to give me what I wanted from this blog — some spirited conversations! Hope you’ll read my next post entitled “Life Tenure Must Go.”