The Supreme Court Sucks

Neil Gorsuch is on the supreme court due to Republican partisan tricks. The Republicans in the senate held up Obama’s nominee for a year (trick one), then used the “nuclear option” to override a Democratic filibuster (trick two). The nuclear option has only been used twice in all of American history, once in 2013 and now here in 2017. Two aggressive parliamentary maneuvers worked for them. Presumably, the use of the so-called nuclear option means all court nominations are to be approved by 51 senators from now on, not the tacit consent of at least 60.

In 2000, the “conservatives” on the court acted in as partisan a way as senators or congressmen and installed a president, George W. Bush. The “conservative” justices turned out to be “Republican” justices. In these two cases, we see extreme partisanship dominating the Supreme Court.

Justices like Gorsuch get on the bench by working with Republican politicians, then justices like Scalia act like Republican politicians when ruling as judges. Naturally, Gorsuch, had to praise Scalia as a “legal lion” when he accepted the nomination. But this whole “lion” paradigm is a distortion. A sharp intellect, a person who communes with deep ideas about justice, fairness, process, and all the philosophical implications of these ideas and actually attempts to put these principles into action: such a “lion” has no chance of getting on the Supreme Court.

Justices are cogs, not fierce defenders. Gears in the machine: pretending to be “intellectual” is a role. Verbal gymnastics to rationalize the imposition of power in the context of a decision is not an intellectual activity, it’s a form of high propaganda. The liberals in recent history include a couple of good examples that might qualify as “lions” but the current crop is not quite up to snuff. Unless you clearly say that the American system of justice is broken and take bold steps to stop the routine grinding up of a large segment of the population, unless you note that endless war is not compatible with democracy, you are no fierce defender of the people.

Gorsuch was groomed to be in a position to get a nomination by something of a conservative judge production machine. Law school, court appointment, he was pushed along by rich backers at every step, from the day he was born. He is from a rich, Republican family and his career was initiated and backed by a Republican billionaire. It’s a regular “cat pretending to be lion” creation factory.

It would be nice if it were possible for someone who, say, drove a truck got into a position of power. Maybe if Gorsuch had driven a truck he might have had a little more sympathy with Alphonse Maddin, forced to chose between freezing to death and losing his job. Gorsuch only had sympathy for the trucking company, seeing an employee not as a human being but as a production unit, you know, sort of like a slave.

Gorsuch is not a Supreme Court judge because he has good judgement or because he is smart or charming or worked hard. No lion: he rose to power by being the man’s pussy cat. Even if any of those attributes apply to him, lots of other people fit all of those criteria and they will never get on the Supreme Court. The only reason for his rise is that he worked with a partisan organization, the Republican Party, and that party in turn worked with oil and gas billionaires like Philip F. Anschutz. That’s how he got on the bench in 2006.

If a party that is directly funded by billionaires to promote an ideology that allows for more billionaires to get more billions puts up a judge, he will rule in favor of their interests. And, of course, Gorsuch has reliably served big business and oligarchs like Anschutz and he will continue to do so for the rest of his life.

He is not in fact a man of reason, a judge, a person deeply concerned with the implications and philosophical implications of government policy. He is, like other politicians, a product of a system that just keeps rolling on: rich billionaires keep drilling for gas, buying politicians, getting rich, and on and on.

Meantime, I would point out, there are more than 25 people walking around free and alive today in the United States who were convicted of murder, sentenced to death, but later exonerated by DNA evidence. I present this one little fact — many fine people have obviously been executed by the state who could not avail themselves of DNA evidence of their innocence — as just one little hiccup to get us started on the idea that everything is not okay with the system rolling on and on, keep on rolling. If you suck up to billionaires you get on the Supreme Court. If you happen to be in the wrong place at the wrong time, you might by dumb luck be executed for a crime you didn’t commit.

And since I mentioned the Republican party, I would point out that while Bush v. Gore (2000) was an abomination in a long history of horrible Supreme Court decisions, if Gore had been president, the world might not be all that different. Gore supported the invasion of Iraq. And if Obama’s nominee had gotten on the court, Merrick Garland, had gotten on the court, there would have been absolutely no danger to the interests of oligarchs like Anschutz and the others to whom both Gorsuch and Garland kowtow. The Republican partisan machine is simply better and more coherent than the equivalent Democratic machine but neither party in any way wants to check or turn let alone stop the system from rolling, rolling, rolling. Rolling over innocent people who were executed, rolling over the war powers provisions of the constitution to allow for endless war, rolling over the environment, rolling over treaty obligations to native people and to the world through the UN Convention on Torture, etc.

We have an undemocratic system in which the people’s voices don’t matter here in America. Proof: “I guess it takes a study to point out the obvious.” If there is a study, and the results are obvious to John Podesta and his kind, the state “the United States is a not a democracy” should be a simple, uncontroversial fact.

Is the current partisanship leading to bad Supreme Court rulings something that just happened? The naked partisanship isn’t new. FDR found a Republican court in control when he got into office in 1932 and had to deal with it in a partisan way.

How about bad decisions? Is the Supreme Court a venerable and august institution in decline? Should we respect the Supreme Court?

No, as I will now argue, hell no. For almost the entire some 230 year history of the United States constitutional structure, the Supreme Court has stood for racism, big business, sexism, and the power of the state over the individual. For about 90% of the history of the court, the big and strong have used the judicial branch to bash the weak and powerless. In the rhetoric of the Federalists in 1788, the court was supposed to protect individual liberty and minorities from factional rule, from a faction that is a majority, and be there to stand by the dissident or the outsider when the majority controls the other branches of government. In general, the court has actually done the exact opposite.

We know the Supreme Court was a good friend of the slave owner. We know that the court did nothing in the face of exonerations of death row inmates. We know that the president can apparently bomb any target anywhere in the world without congressional approval. We know that presidents have arbitrarily and on their own abrogated and defied treaties ratified by the US Senate with the force of US law. We know the Supreme Court tried to stop the New Deal. We know about Citizens United. We know about “separate but equal.” The court undermined the Civil Rights amendments to the constitution and allowed for White supremacy to take over the all aspects of government in the late nineteenth century. The FBI spied on Americans because of their politics in the 1970s, framed them, and sometimes killed them in staged raids. Eugene Debs and many others went to jail because they were against World War I and the court didn’t protect them. Jehovah’s witnesses were lynched for not taking the Pledge of Allegiance and the court was on the side of the lynch mob. We saw the court install a president in 2000.

You can see it. It’s not a great institution that went off the rails here and there. The Dred Scott decision was not a blemish in an otherwise perfect history of justice. The proper conclusion of a fair consideration of history is that the Supreme Court sucks and always has and is entitled to no respect and deference.

Generation after generation, the court has issued horrible decisions (or fails to rule at all) such that they knock the chair out from under vulnerable people and leave ordinary Americans and people around the world at the mercy of tyrants. If the proof of the pudding is in the eating, the Supreme Court of the United States is a shit stew.

The framers of the constitution decided for a strong federal judiciary to control factional government, especially when a faction become a majority. In Federalist Paper 10, for example, Madison said, “”the most common and durable source of factions has been the various and unequal distribution of property.” Wikipedia says, “Madison feared that a majority faction of the unpropertied classes might emerge to redistribute wealth and property in a way that benefited the majority of the population at the expense of the country’s richest and wealthiest people.”

When the proponents of the new US constitution came out with their new document, they did not advertise the idea that the courts could rule a law unconstitutional. It seems Madison and Hamilton and their allies hoped to sneak the notion of a court throwing out a law into our system of government without explicitly debating the issue in public.

In some of their earlier writing, you can read that they believed in judicial review. The issue was discussed at the constitutional convention and the majority seemed to agree that courts should have the final say on what is and is not allowed under the constitution. They weren’t sure, however, how the general public would react to the idea, so they tried to slip it passed the rest of the country.

The opponents of the constitution first brought up the fact that under the new system, it seemed like courts could overrule legislatures, including the Supreme Court over Congress. Brutus and Federal Farmer, two pen names for the opponents of the constitution, pointed out that the Supremacy Clause and Article III, Section 2 would give the courts vast powers. Like in Britain, they wrote, the constitution will allow the courts to “mold the government into almost any shape they please.” Judges should not be allowed to sit for life unless they commit a crime, as that would leave “no way is left to control them but with a high hand and an outstretched arm.” They concluded that through “our inattention to limiting properly the judicial powers, we may fairly conclude, we are more in danger of sowing the seeds of arbitrary government in this department than in any other.”

Only after Brutus and the Federal Farmer outed judicial review as part of the constitution did the Federalists like Madison and Hamilton fess up to what they had in mind and present an argument in favor of judicial review. They tried to slip this judicial power into the structure of government without an open discussion and, failing with that strategy, they went with plan B, and presented a case for a strong federal judiciary openly in the Federalist Papers.

Madison got his way. The court has been powerful and largely in the service of the wealthy since the inception of the Republic.

Here are some bad decisions: Dred Scott 1857 (ruling black people aren’t citizens), Plessy v. Ferguson (allowing separate-but-equal) 1896, Buck v. Bell 1927 (permitting compulsory sterilization), and Korematsu v. United States 1944 (upholding Japanese internment camps), Slaughter-House Cases / United States v. Cruikshank 1873 / 1875 (undoing Reconstruction), Chae Chan Ping v. United States 1889 (upholding Chinese exclusion act), Bowers v. Hardwick 1986 (allowing laws against homosexual), Lochner v. New York 1905 (against workers rights), Hammer v. Dagenhart 1918 (voiding child labor law), Lucas v. South Carolina Coastal Commission 1992 (preventing the protection of the environment), Exxon Shipping Co. v. Baker 2008 (increased Exxon stock by 23 billion in one day), Citizens United v. FEC 2010 (big money politics).

These are not aborations, exceptions. The anti-labor decisions in the period of Lochner were widespread. Plessy, Cruikshank are part of a pattern.

In every period of US history, the court has stood by the powerful against the weak, except for the period when FDR and others who followed him appointed the judges, from about 1954 and Brown v. Board of Education through the early 1970s. There are no really terrible decisions in this period. The rest of it? Crap. 1850s siding with slave owners, in the 1870s with racists, in the 1900s with the bosses, in the 1920s with the eugenicists, in the 1930s against the New Deal, in the 1940s against the Japanese, and in the 1980s, 1990s and 2000s with big business.

Does a legal lion stand by and let Japanese families get imprisoned? Exclude people from the country because they’re Chinese? Be lynched because they’re Jehovah Witnesses? Be a slave? Execute an innocent man? Deny education to Black people? Give money to Exxon to pollute the environment?

The US system was never designed to be a democracy. And it isn’t.

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Will Pflaum

Will Pflaum

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Projects: The Fade Out, Juba, Under Two Maples, Dog Stories, MOGE, Bugs, Pound Flesh, Funky Record, Mutherplucker, Phlogiston, sunshineonthehudson