American civics is aphoristic. We live in a republic, governed by the rule of law. In order to provide checks and balances, our Founding Fathers separated power among three branches of government: the executive, legislative, and judicial. This last branch is a fair and neutral arbiter between the first two, an apolitical umpire whose job is to ignore partisanship and call constitutional balls and strikes. But what happens when our aphorisms no longer reflect facts? What happens when reality swamps our ideals, and washes away the foundations of our republic?
The cold, hard truth is that we do not have three separate and independent branches of government. Brett Kanvanaugh’s confirmation did not kill the Supreme Court as an neutral judicial body; it has been dead for years. Kanvanaugh is simply the putrid and pustulant indicator of decomposition – the unmistakable and unignorable sign that the Court’s apolitical vitality has ceased, and it has decayed into an un-elected, life-tenured, hyper-partisan super-legislature, which exists to exercise naked political power on behalf of traditional American hegemons.
The U.S. Supreme Court is dead.
A Federalist Society of Perpetrators
The homicide has legions of perpetrators, but one of the primary culprits is the Federalist Society. A self-described “group of conservatives and libertarians interested in the current state of the legal order,” it was founded in 1982 by three law students at the University of Chicago and Yale. Antonin Scalia was the society’s first faculty adviser at Chicago; Robert Bork took up that responsibility at Yale. The Federalists were quickly embraced – and heavily funded – by some of the most powerful and wealthy conservatives in the nation, including Richard Scaife and the Koch brothers.
As a society supposedly dedicated to libertarian principles, the track record of its members invites us to question why their belief in limited government does not apply to the bedroom or the human body. For while the Federalists claim not to “take positions on legal or policy issues or engage in other forms of political advocacy,” and not to “lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service,” its members who advance to federal judgeships all seem cut from the same extremely religious, incredibly anti-abortion & anti-LGBTQ & anti-voting rights mold. They include:
- Amy Coney Barrett, a Federalist Society member from 2005 – 2006, and again from 2014 – 2017, was confirmed by the Senate in October 2017, and now sits on the U.S. Court of Appeals for the Seventh Circuit. Judge Barrett has questioned Roe v. Wade and condemned the Affordable Care Act’s birth control benefit as “a grave infringement on religious liberty.”
- John Bush, who headed the Louisville, Kentucky chapter of the Federalist Society, was confirmed by the Senate in July 2017, and now sits on the U.S. Court of Appeals for the Sixth Circuit. Judge Bush compared abortion to slavery, called these issues “the two greatest tragedies in our country,” applauded Mike Huckabee for saying he “strongly disagrees with the idea of same-sex marriage,” mocked climate change, and celebrated that “the witch is dead” when he thought the Affordable Care Act might not be enacted.
- Kevin Newsom, who was confirmed to the U.S. Court of Appeals for the 11th Circuit in August, 2017, wrote a law review article in 2000 equating the rationale of Roe v. Wade to the infamous Dred Scott decision. In a 2005 article for the Federalist Society, he argued Title IX does not protect people who face retaliation for reporting gender discrimination.
Under President Trump, the Federalists have assumed a role unlike any other in our history; as long as Republicans control the Presidency and the Senate, the Federalist Society dictates who is on the U.S. Supreme Court. Following the retirement of Justice Anthony Kennedy, Trump’s campaign lawyer Donald McGahn made a list of 25 people to fill the vacancy. Helping McGahn was Leonard Leo, executive Vice President of the Federalist Society. Leo has since taken a leave of absence from the Federalist Society to work as an unpaid adviser on the now successful nomination of Justice Brett Kavanaugh. who has been a member of the Federalist Society since 1988. McGahn himself has been open about his affinity for the Federalists; at their 2017 annual conference, McGahn discussed allegations that the White House “outsourced” Supreme Court vetting to the Society, stating, “I’ve been a member of the Federalist Society since law school — still am. So frankly, it seems like it’s been in-sourced.” Trump’s first Supreme Court pick, Neil Gorsuch, gave the keynote speech at the same conference, telling the attendants,
Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States…Thank you from the bottom of my heart for your support and prayers through that process.”
With Brett Kavanaugh’s confirmation, the success of the Federalist Society is complete, and the Court will have a hard-core rightist majority for years, perhaps decades to come. (Like so many of the left’s attempts to replicate successful, creative right wing political innovations, its efforts in this arena have proven too little, too late. The progressive American Constitution Society was not founded until 2001, with a $6 million annual budget compared to the Federalist Society’s $20 million.)
What the Federalists will do with their majority is not hard to decipher. Despite their assertion that they stand for “limited government principles,” the last several years of Supreme Court jurisprudence demonstrate what Society members really want is to limit the franchise, dismantle the New Deal, and roll back the hard fought political gains marginalized people have been struggling for and dying for since the end of the Civil War.
The Crime Scene of Shelby County
In 2013, the Supreme Court ruled in Shelby County v. Holder that Section 4 of the Voting Rights Act (VRA) of 1965 was unconstitutional. Under the original 1965 VRA, states with a history of legalized racial discrimination had to “preclear” all proposed changes to their voting laws with the Department of Justice (DOJ), in order to ensure minorities would not be disenfranchised. In a 5-4 decision, Chief Justice John Roberts wrote for the majority that the preclearance requirement was “based on decades-old data and eradicated practices,” that “voter registration and turnout numbers in the covered States have risen dramatically” since 1965, and therefore preclearance was unjustified by any current needs and unconstitutional.
The main problem with Roberts’ findings is that they are wrong. Writing in dissent, Justice Ginsburg called the Court’s attention to the fact that the Voting Rights Act was explicitly reauthorized by Congress in 2006, when it passed the House by a vote of 390-33, passed the Senate by a vote of 98-0, and was signed into law by President Bush. As Ginsburg noted, before these votes Congress held twenty-one re-authorization hearings, heard from scores of witnesses, and compiled a legislative record of more than 15,000 pages. To RBG, the facts that emerged from this exhaustive process were clear:
- In states covered by the section 4, the DOJ objected to more proposed discriminatory voting laws between 1982 and 2004 than between 1965 and the 1982;
- Between 1982 and 2006 the DOJ blocked over 700 voting changes based on a determination that the changes were discriminatory.
- The majority of DOJ objections included findings of discriminatory intent, and the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.”
Finally, Justice Ginsburg pointed out the ridiculousness of the majority’s reasoning when she wrote, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Other commentators have written how Shelby County “broke America,” by whitewashing our white supremacist history and taking the Supreme Court out of the business of protecting civil rights through the 14th and 15th Amendments. If only the story had such a happy ending.
What Shelby County illustrates best is how ready and willing five Supreme Court Justices are to discard their entire judicial philosophy at a moment’s notice, if it means advancing their political agenda. Justices Kavanaugh, Gorsuch, Roberts, Alito, and Thomas all claim to be staunch adherents to originalism and textualism, symbiotic concepts meaning judges should attempt to interpret the words of the Constitution as they were understood at the time they were written, and judges should consider only the words of the law being reviewed, not speculate on what legislators may have intended those words to mean. Along with the Federalist Society, the Justices have also sworn eternal enmity to “judicial activism,” or the willingness of judges to “legislate from the bench” by striking down the actions of the executive or legislative branches. Yet the majority’s decision in Shelby County was a truly breathtaking act of precisely that. The Court chose to simply ignore the bi-partisan, nearly unanimous 2006 reauthorization of the VRA by Congress, chose to ignore a mountain of evidence that race-based disenfranchisement continues to be a clear and present danger to voters in the South, and instead ruled preclearance was unconstitutional because…well…because they just don’t like it.
This kind of legislating from the bench was nothing new for the Court’s ultra-right wing. In the 2008 decision Heller v. District of Columbia the patron saint of originalism and textualism Justice Antonin Scalia simply dismissed the first two clauses of the 2nd Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”), in order to reach his preferred political conclusion that the Constitution protects an individual’s right to possess a firearm.
We have heard a lot about Brett Kanvanaugh recently. At this point it is difficult to adequately summarize all of the personal traits and episodes making him unfit to sit on any court, let alone our highest court, and his confirmation is a brutal affront to women, civility, and democracy which will only become more painful with each terrible decision Kanvanaugh joins. Yet as the Supreme Court goes about its business of blessing disenfranchisement, hobbling unions, and oppressing women and marginalized people, it is important to remember none of this started with Brett Kanvanaugh. He did not kill the Supreme Court in the wooded hills of Shelby County; he is merely the most recent Federalist carrion beetle to consume its decomposing flesh.
Postscript: Hope from Papa Zinn
After John Roberts was confirmed as Chief Justice in 2005, Howard Zinn attempted to assuage our despair over the conquest of the Supreme Court by the forces of reaction and intolerance.
Let us not be disconsolate over the increasing control of the court system by the right wing.
The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people. Those words engraved in the marble of the Supreme Court, “Equal Justice Before the Law,” have always been a sham.
No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence – an equal right to life, liberty, and the pursuit of happiness – be fulfilled.”
– Joel Feinman