Takeaway #6: Closing Argument
Ladies and gentlemen of the jury, I’ve tried to explain to you, in a mostly civil manner, my honest opinions about our Supreme Court. Our Supreme Court? Or should I say their Supreme Court, because it certainly is no longer mine. It’s the Federalist Society’s Supreme Court. It’s the MAGA-Republican Party’s Supreme Court. It’s the White Christian Nationalists/Radical Evangelicals/Theocrat’s Supreme Court. It’s the NRA’s Supreme Court. It’s the dark money billionaire’s Supreme Court. It’s Mitch McConnell’s[1] Supreme Court. It’s the unborn’s Supreme Court.[2] It’s Big Business’ Supreme Court. It’s Originalism and Textualism’s Supreme Court. It’s a Supreme Court which often carelessly looks backwards into history for answers while ignoring what is right in front of them at this very moment as well as what lies ahead. It’s a Supreme Court which makes me wonder sometimes if it chooses a desired result and then reverse engineers the facts and the law to make it fit. If you identify with any of these categories, then mark on your verdict form next to “Not Guilty,” and you’re done. If one or more of the foregoing does not resonate with you, then I urge you to read on.
This is not a Supreme Court that is faithful to its oath to “administer justice without respect to persons.”[3] It’s not a Supreme Court mindful of its duty to ensure equal protection of the law. It’s not a Supreme Court concerned about claims of over-activism. It’s not a Supreme Court that worries about ignoring inconvenient but well-established precedents (stare decisis). It’s not a Supreme Court in which all members play by universally recognized rules of judicial ethics. In short, it’s not a Supreme Court which has gained the trust and confidence of the majority of Americans.
I came of age during the Warren Court era. I respected it, and later on I respected the Burger Court. I even respected the Rehnquist Court, notwithstanding having produced one of the worst decisions in the court’s history.[4] I believed that by and large these courts were composed of honorable men and women who cherished the rule of law, respected stare decisis, and approached cases with an open mind despite their natural, human predilections.
I was able to respect the Roberts Court at the outset when there were three predictable votes from the right, three from the left, and three unknowns capable of voting either way. Then swing-voter Sandra Day O’Connor left and was replaced by the dyspeptic slayer of Roe v. Wade, Samuel Alito. Then David Souter and John Paul Stevens left and were replaced by Sonia Sotomayor and Elena Kagan, respectively, all pretty much even trades. Then the edgy-but-brilliant prophet/evangelist of Originalism, Antonin Scalia, died and was replaced by Merrick Garland – oops, I meant to say by another unabashed originalist/textualist, Neil Gorsuch. Then swing-voter Anthony Kennedy left and was replaced by the temperamental, I’ll-do-and-say-anything-to-get-on-the-Supreme-Court Brett Kavanaugh, another hard right-winger. Then the liberal, feisty, champion of women, Ruth Bader Ginsburg, died and was replaced by her polar opposite, Amy Coney Barrett. Then Stephen Breyer left and was replaced by Ketanji Brown Jackson, another fairly even trade. In recent years the far-right supermajority on the Roberts Supreme Court has virtually destroyed my lifelong respect for the institution. The prospects of gaining it back look pretty grim, especially if Justices Thomas and Alito continue misbehaving, and they, along with Trump’s three appointees, continue with their agenda of reversing decades, if not centuries, of constitutional law, reminiscent of the Supreme Court during the Gilded Age.[5]
Let me give you my thumbnail sketch of the six justices that make up the faction commonly known as the Supermajority, the gang currently wrecking constitutional law.
John Roberts. A pleasant, well-meaning chap who comes across as the all-American boy, but is in fact an ivory-tower hypocrite out of touch with what’s going on in America. He claims he’s just a plain and simple ole umpire calling balls and strikes. Well, depending on whose case is before his court, his strike zone widens and narrows radically to suit his purposes. While he may have saved Obamacare, his record on voting rights, gun safety, election finance reform, and the leveling of all playing fields is abysmal.
Clarence Thomas. A serial ethics violator, he was once considered the court’s odd duck because of his quirky dissents in the early years of his tenure. Few people paid much attention to the strained logic often found in his bizarre writings, that is, until the court drifted further and further to the right. Now he’s the honorary captain of the Supermajority. Thomas didn’t change. America didn’t change. Only the colleagues around him changed.
Samuel Alito. The sourpuss first mate of the Supermajority, Alito is the author of the poorly-researched, sloppily-written screed which unnecessarily reversed perhaps the most consequential decision affecting women and families in Supreme Court history, Roe v. Wade. He’s well-known for his schoolyard petulance and antipathy toward anyone opposing his views. For proof, one has only to read his opinions and speeches, or listen to him at oral arguments. Alito is clearly the court’s “own-the-libs” justice.
Neil Gorsuch. From his first days, Gorsuch has conducted himself as though he were a venerable veteran of the court, perhaps because he filled the seat of the brilliant but controversial Antonin Scalia. Gorsuch is perhaps the most devoted disciple of Scalia’s hardcore brand of originalism and textualism. His negative attitude toward regulatory agencies may have derived from his mother’s politically-motivated firing as head of the EPA during the Reagan Administration.
Brett Kavanaugh. He’s that temperamental, revenge-pledging, kissing-up justice who still wants to be liked by everyone – perhaps to atone for the disgraceful, unjudicial behavior he exhibited at his confirmation hearing. [6] Unlike his mentor whom he replaced (Anthony Kennedy), his patent unfitness[7] to serve will place him squarely within the pantheon of those dozens of justices throughout American history who never made a single mark on our constitutional law. He will go along to get along. That’s the precise quality the Federalist Society wanted from him.
Amy Coney Barrett. Just another jurist who, like Thomas, Alito, Gorsuch and Kavanaugh, purposely misled the Senate by misrepresenting her preconceived judicial viewpoint on Roe v. Wade. Her best-known statement to date comes not from a judicial opinion, but from a speech: “We’re (the court) not a bunch of political hacks.”[8] Never has a Supreme Court justice felt it necessary to publicly offer this kind of defense of herself and her colleagues. So, why say it if not for so many people believing it’s true?[9]
Despite the excellent educational and professional training all of these justices received, can you, members of the jury, believe this is the best America has to offer? I certainly don’t. In my opinion the total number of men and women in America who are truly qualified to serve on the United States Supreme Court could not even fill the average school bus (90). If I searched that bus today, I wouldn’t find one member of the Supermajority on it. While all of them technically qualify, they all fall short of meeting Socrates’ four simple qualifications for being a good judge: to listen courteously, answer wisely, consider soberly and decide fairly. Being a favorite of the Federalist Society and its supporting cast of billionaires doesn’t win a seat on the school bus.
Winning a seat on the Supreme Court should not be a competition to see who gives the best audition to the Federalist Society. He or she should not bring to the job any unshakeable attitudes that may inappropriately affect their ability to be thoughtful, open-minded, independent stewards of the Constitution.[10] Recently, the court had a justice who exemplified all of Socrates’ positive attributes. He is the most recent retiree from the court. His name is Stephen Breyer. He checks all of the right boxes. He is not well known because he quietly went about doing his job for 28 years with dignity, humility, optimism, and deep loyalty to his Constitutional Oath to promote and defend the Constitution, and his Judicial Oath to “administer justice without respect to persons, and do equal right to the poor and to the rich . . . “ We need more Stephen Breyers and fewer Supermajority hacks.
Ladies and gentlemen, what is your verdict?
[1] Without McConnell, the Supreme Court today would consist of John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Merrick Garland, Neil Gorsuch, Ketanji Brown Jackson, and a ninth justice chosen by Joe Biden. That’s a majority of five moderately center-left justices and four squarely far-right justices.
[2] We have yet to know if it’s going to be the frozen embryo’s Supreme Court.
[3] “Persons” here include women who were granted their reproductive rights 50 years ago (Roe v. Wade), and persons of color who gained their civil rights 156 years ago (Amendments 13 – 15) and which were re-confirmed 60 years ago (Civil Rights and Voting Rights Acts).
[4] Bush v. Gore. It’s right up there with Dred Scott v. Sanford (pro-slavery), Lochner v New York (anti worker’s rights), Korematsu v. U.S. (Japanese internment), and Plessy v. Ferguson (separate but equal).
[5] A period roughly between 1870 and 1900, when the rich got richer, the poor were exploited, and the prosperous, white, mainstream-thinking males enjoyed their rights and liberties, while the rights of the under-privileged were marginalized, all aided and abetted by the era’s Supreme Court. It was an America in decline but gilded with the gold of the robber barons.
[6] Judges simply do not react the way he did. Clarence Thomas’ reaction to Anita Hill was a fairly controlled display of righteous indignation. Kavanaugh’s was a wild rant, reminiscent of a surly schoolboy, a performance some claim was deliberately orchestrated rather than spontaneous. Either way, it’s disqualifying behavior.
7 He also openly issued a threat to “get even,” another entirely injudicious action. There is only one way a justice can get even, and that is through the power of his judicial acts. I fear Kavanaugh might follow the lead of another scorned and publicly humiliated justice, Clarence Thomas.
[8] She said it at a speech delivered in the friendly confines of a venue named after one of America’s premier political hacks, Mitch McConnell, who was standing nearby.
[9] The recent decision to take up Trump’s immunity claim, further delaying his January 6 trial, most likely until after the election, is just one more reason for skeptics to wonder if Barrett’s disclaimer is indeed false.
[10] Thomas and Kavanaugh have both claimed victimhood from liberals in the Senate. Alito and Gorsuch who, while growing up, both had an experience whereby, in their adolescent judgment, one of their parents was unfairly mistreated by government. This is just innuendo and speculation on my part, but, as one who knows, judges bring their life experiences to the bench, and this includes episodes of family members being treated unfairly.
Cousin Jim…You have (and are) certainly more facts and historical background from which to justify a vote than I do. Therefore I will pass along my ballot for you to stamp with vigor!
Guilty. Hopeless. Decades to repair.
Jim,
As I observe our broken world, I see many on both sides of the isle, republicans and democrats who are living in compromise of integrity to what is honest and true and good. I stand for what I honestly feel is best for our country before God asking for Him to help me stand for truth, integrity and honesty. May I not be a compromiser in my life and may I draw strength from our Sovereign God who, even though it doesn’t look like it the way the world is going, has not lost control. He is the Victor and His plan prevails. Thank you for your thoughtful writing from all you know and from your point of view. I don’t want to have division in our family and I want my love for you and others to prevail as a higher value than my being right or you being right. We both have to speak from our hearts even though we have very different points of view about the direction our country should go and what is best for our future. I send lots of love and pray for wisdom from our Creator. Love, Henrie
Henri,
I appreciate your readership and I honor your Christian views, which I know you faithfully cling to, and I love that about you.
That said, this series was about a secular institution whose members swear an oath to a secular document, the Constitution, while asking for God’s help, not the political practices of any particular faith or denomination. I, too, believe in honesty, integrity and truth, and I don’t always see that coming from an institution which ought to be held to the highest standards of honesty, integrity and truth. That’s why I wrote these six essays.
If the six justices I criticized in this series were appointed by Democratic presidents, rather than Republican presidents, I wouldn’t change a word.
In my view, the United States Supreme Court ceased to be a legitimate governmental institution the moment Antonin Scalia darkened the doorway of the Supreme Court building in 1986. It seems that any time any person describes him, they go out of their way to laud his intellect, all the while ignoring the fact that he spent his entire career imposing his radical right wing Catholic views on all of us, save and except the death penalty. He really liked the death penalty.
Seldom does any description of Scalia in the press fail to mention his friendship with Ruth Bader Ginsburg (and their shared penchant for opera), as if that would magically inoculate him from criticism for his horrendous decisions. You correctly regard Bush v. Gore as among the worst decisions ever made by the court, but I suggest that taking over 200 years of precedent about injunctions and flushing it down the toilet in order to ensure the election of George Bush makes it the worst, by far. It’s also worth noting that Roberts, Kavanaugh and Barrett were Bush lawyers, with Thomas as the Bush justice.
Scalia, who openly stated that voting rights are an “entitlement,” and who never missed an opportunity to denigrate sentient adults by calling them snowflakes and politically correct, actually stated in that ridiculous ruling that the reason for the decision was because the United States could not bear another day of uncertainty about the outcome of the 2000 election. Then they added at the end that the case would have absolutely no presidential value whatsoever, the first and only such case in the history of the Republic.
Then there’s the gun case, District of Columbia v. Heller, in which Scalia, the “textualist” and “originalist,” decided to interpret the Second Amendment by simply redacting its prefatory clause with a black marker. So much for all that originalist claptrap. I’ve had my disagreements with Warren Berger, but agree completely when he accurately described the gun lobby as perpetrating the biggest fraud on the American people by a special interest group. Fortunately for him, he did not live to see the day when that fraud was adopted wholesale by the majority of the Supreme Court.
https://www.youtube.com/watch?v=Eya_k4P-iEo
As for John Roberts, I suggest that you are being way too kind in your description of him as a “kind, well meaning chap,” etc. He has made it his life’s work to subvert voting rights, which he was actively engaged in doing way back when he worked in the Reagan administration; something he ultimately succeeded in accomplishing in the utterly outrageous decision in Shelby County v. Holder.
The holding of that modern day Dred Scott case is essentially this: “We elected a black president, so racism no longer exists.” He effectively nullified the Voting Rights Act of 1965, the most consequential piece of legislation passed in my lifetime. Do you remember studying in law school the precept that because one Justice falsely thinks that a law is no longer necessary, it suddenly becomes unconstitutional? Me neither.
And please don’t get me started on his lack of ethics. He and his wife, who was working for a white shoe law firm at the time of his appointment to the Supreme Court, wanted to make sure that the money train kept on rolling down the tracks, so she set up a lawyer recruitment firm that has earned them both tens of millions of dollars. Both she and her husband make money from lawyer clients and employers. Compensation seems to be similar to that of a bookie, who makes money on both ends of the transaction, no matter who wins the game.
Oh, and the umpire (who’s just calling balls and strikes, haha), has to report compensation to no one, ever. There’s no commissioner in his league, so he not only gets to decide the size of the strike zone (which varies widely), but whether or not the pitch clock will ever be an issue. The pitch clock has evidently been turned off completely for Trump.
I conclude where I started. The Supreme Court ceased to be a legitimate governmental institution long ago. They are guilty as charged in your comprehensive indictment. I do not think any of this can be fixed until we expand the court to at least 13 and an ironclad ethics code with enforcement mechanisms is adopted, imposed and enforced.
Steve,
Regarding Bush v. Gore, I think its important for lay people to understand that it was a terrible case, not because it was decided in favor of Bush, but because they took the case out of the Florida Supreme Court’s hands and stopped the counting of ballots. As they indicate in their opinion, the case should never be considered precedent because they should have never taken up the appeal in the first and let five people essentially take the election out of the hands of the Electoral College (another institution that’s gotta go), and take it upon themselves to chose the next president.
There was a significantly high probability that Bush would have won Florida anyway, had the count proceeded to its conclusion. The problem was the intervention.
If Scalia had had time to reflect in the moments before his dying, I suspect his last breathless words would have been “Bush v. Gore,” much the same way Charles Foster Kane whispered “Rosebud.”
I appreciate your reference to “Citizen Kane,” but would suggest that you are perhaps being a bit too charitable to Scalia (a man who I regard as the worst justice in the history of the court) when you seemingly ascribe to him something other than a malevolent motive in taking up the case.
I think it’s clear that the majority deliberately deprived the Bush v. Gore case of its precedential value not because they shouldn’t have taken it up (although that is definitely true), but rather so that they could disguise their rank hypocrisy and intellectual dishonesty in disregarding two centuries of their own precedent on injunctions all in order to choose the president.
They accomplished this by cloaking this outrageously Machiavellian decision with a patina of legitimacy amidst a lot of word salad about equal protection and the 14th Amendment. The majority knew for certain their reasoning was built on a foundation of sand and riddled with claptrap that they knew could come back to haunt them, so they preempted any adverse consequences by taking a blow torch to stare decisis for just this one little case.
As you correctly note, this is a truly terrible decision, but one that caused Scalia to repeatedly say for over 15 more years: “Hold My Beer.” And I would be remiss were I not to note that O’Connor’s grimy political fingerprints are all over it and not lost to history:
https://www.cnn.com/2023/05/02/politics/bush-gore-oconnor-supreme-court-2000/index.html
The final paragraphs of Justice Stevens’s dissent in Bush v. Gore serve as both prologue to and predictor of the well-earned public opprobrium justifiably heaped upon the Roberts Court that you have extensively documented in your six tales of dysfunction:
“What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit.
“The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision.
“One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”