Steven C. Day for BuzzFlash: How Can a Currently Right-Wing Packed Supreme Court Be Betrayed by Expansion?
April 21, 2021
The United States Supreme Court (Benjamin B)
By Steven C. Day
Could there be anything more absurd than the recent Republican pearl-clutching over Democratic proposals to increase the size of the Supreme Court? Having stolen not one, but two, Supreme Court seats from Democratic presidents, they now cry foul when Democrats try to take them back. Thieves caught in the act, they now feign outrage when their victims try to reclaim the loot.
But to truly understand what is happening today, it is necessary to revisit how we got here.
The elevation of Bret Kavanaugh and Amy Coney Barrett to the Supreme Court marked the culmination of a decades-long right wing crusade to gain control of the federal courts. Largely financed by a small group of extremely wealthy conservative backers, the leaders of this movement were prepared to be patient. After all, they were playing for the big prize — nothing less than the opportunity to rewrite American constitutional law. They wanted the country to go backward, to readopt long discredited legal theories under which they, and their businesses, would be largely freed from government regulation, leaving them free to pollute, evade safely rules and crush unions. They wanted an end to those pesky civil servants telling them what they can and can not do. Accomplishing all that would require playing the long game.
The money forked over by these wealthy donors was intended as a long term investment, used to create a right wing infrastructure. Their money built right wing legal organizations from the ground up, including The Federalist Society, founded in 1952 — an organization that for decades has acted as an incubator for future right wing judges. They funded think tanks and paid for faculty chairs at universities. In this way, over time, they were able to do something more valuable than winning isolated court battles. They changed the terms of the legal debate.
These conservative legal crusaders had already achieved much by the time George W. Bush was running for president in 2000. Conservatives were in control of the Supreme Court, with five conservative justices and only four comparatively liberal ones — a conservative supremacy that as of today has existed, without interruption, for over half of a century. Still, in 2000, the right’s hold on the Court was tenuous. Election of a Democratic president that year would almost certainly have eventually flipped control of the Court to the to more liberal justices. But that, of course, didn’t happen.
History will almost certainly judge the decision in Bush v. Gore as one of the Court’s most shameful actions. Less a judicial decision, than a political power grab, the opinion was so poorly reasoned from a legal standpoint that the Court’s majority itself directed that it not be cited as precedent. Even Richard Posner, the brilliant conservative jurist who wrote a book defending the decision, admitted the Court’s equal protection analysis was deeply flawed.
The Supreme Court’s selection of George W. Bush as president did not serve the nation well, leading to an unnecessary and disastrous war in Iraq, use of torture, increased economic inequality, attacks on civil liberties and, ultimately, economic collapse. It was, however, a golden opportunity to advance the far right’s judicial agenda. And disproving all predictions he would serve as a moderate president due to the controversy surrounding his selection, Bush launched into the project with gusto, selecting judges further to the right than even the very conservative ones nominated by Ronald Reagan. This included two Supreme Court justices, Chief Justice John Roberts and Associate Justice Samual Alito. Alito, in particular, moved the Court significantly further to the right, since he replaced the conservative, but comparatively moderate, Sandra Day O’Connor.
Among the cases that come before the Supreme Court, are a small number that can directly impact the outcome of elections. In the years following Bush v. Gore, the Court’s conservative majority has consistently decided such cases in ways that improve Republican electoral prospects. The most dramatic example, of course, was Citizens United, where the conservative majority etched into the constitution a right by corporations to freely spend their shareholders’ money for the purpose of trying to control the outcome of elections, thereby insuring monied interests will usually have the loudest voice in the political discourse in the country.
But while the Court’s conservative majority has consistently expanded the political rights of corporations, actual, living, breathing human beings haven’t done nearly as well. The conservative majority has proven to be very comfortable with GOP vote suppression, upholding voter ID requirements, approving politically motivated extreme gerrymandering and even striking down a critical part of the Voting Rights Act. This last action, it should be noted, is another decision history will judge harshly. At the very moment efforts to infringe on minority voting rights were kicking into high gear, the Court went out of its way to make it much harder to fight those efforts.
While there is no way to know for certain, when you consider the extraordinary closeness of the 2016 presidential election in the critical states, there is every reason to suspect that absent these pro-Republican decisions, Hillary Clinton would have defeated Trump, and Bret Kavanaugh and Amy Coney Barrett would never have joined the Court. As this history shows, to a very real degree, the right wing’s control of the Supreme Court is something right wing judges and justices themselves helped shepherd into existence.
And no one should be fooled by those who argue the Court’s refusal to intervene in the 2020 election proves a lack of political bias. To have set aside Trump’s defeat in 2020 would have required jettisoning election results in multiple states. This combined with the extreme weakness of Trump’s legal arguments, meant there was no way the Court could have realistically handed the election to him. If the election had been closer, say involving a close result in a single decisive state, the result may well have been different, as it was in 2000.
So, with a sense of helplessness, we wait for this new, truly radical, Trump-infused six-three right wing majority to do its worst. But don’t expect much drama right away. These are not stupid people. And with lifetime appointments they have no reason to rush. It is unlikely the Court will strike down major progressive programs right out of the gate. Some big blows will occur, but for the most part expect this to be death by a thousand cuts. Bit-by-bit, one progressive priority after another, will fall from the cumulative effect of those thousand cuts. At the same time, the Court can be expected to continue to put its thumb on the scale in overtly political cases in ways that help right wing candidates. More Republicans elected, more right wing judges appointed.
Thus, as we boomers gradually die off and a new, much more diverse and progressive, generation of Americans moves into dominance, they will find their ability to pursue their generation’s priorities cut off at every turn. Minority political control, locked in by extreme gerrymandering, will thwart them in seeking legislative reforms, while, at the same time, whatever success they do have politically will often be dispatched by a Supreme Court still filled with people of anther time.
It would be fair to ask, how this can be called a betrayal of the Supreme Court? If anything, it sounds like the Court will be more important than ever. But a structure built on such extreme contradictions will never be stable. Eventually the edifice is certain to collapse and with that collapse the Supreme Court’s central role in our culture and governance will end, or at least dramatically change. It seems likely one of two things will happen: the country will either continue to slide into an authoritarian model of governance, leaving no room for an independent judiciary, or, the Court, at least as presently constituted, will be washed away by a tsunami of popular discontent. As the Supreme Court itself has noted, courts have no armies or other means of compelling obedience. The Court’s power depends on the public’s belief in and commitment to the legitimacy of the Court’s role — things very unlikely to remain strong if the Court is perceived as undermining the beliefs and priorities of a new age.
Either way, the Supreme Court, as it now exists, will likely be dramatically degraded — a Court betrayed, the victim of highjacking by narrow interests intent on using it as a weapon in a war against the future.
Steven C. Day is an attorney in Wichita, Kansas and author of the recent novel, The Patriot’s Grill
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