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Kill The Supreme Court

Wake up, people! Wake up! The Sotomayor hearings are done now, and - with apologies to Gerald Ford - our long national naptime is over.

For twenty or thirty years now, this country has maintained two absurd fictions when it comes to American jurisprudence and the process of selecting the members of our national courts. Both of these grand national lies were reaffirmed last week, as if the legal principle of stare decisis - roughly, maintaining the status quo - had now metastasized into a rigid political one as well. What a joke.

More on those below. But, first, it cannot go without mentioning that there was a major breakthrough in the capital this week, one of epic proportions. Yes, ladies and gentlemen, for the first time since at least the 1960s and possibly since age of Lincoln, our nice regressive friends in the Republican Party have come to hate racism!

This is pretty amazing, if you think about it. We're talking here about the very same people who brought you the Southern Strategy in 1964 and 1968, whose great hero - Saint Ron of Hollywood - launched his presidential campaign in Philadelphia, Mississippi, proud home of the murder of civil rights activists, who gave us the Willie Horton ad in 1988, and who stole the elections of 2000 and 2004 by disenfranchising black voters in Florida and Ohio, respectively.

Now, a mere five years later, here we come to find them engaged in the fastest consciousness-raising experiment in human history, and positively outraged at the prospect of racial discrimination! And therefore spending countless hours throughout the Sotomayor hearings, fighting for truth, justice and the American way, making sure that a racist doesn't end up with a lifetime appointment to the United States Supreme Court!

And led by Jefferson Beauregard Sessions III (no, I'm not kidding), junior senator from Alabama, no less. Y'all remember Jeff, doncha? He was himself nominated to the federal bench by - you guessed it - Ronald Reagan, only to be shot down by the very same committee on which he is now the ranking member. Even the then-senator from his own state on the committee didn't vote for him. Seems that Beauregard was not necessarily so beauly regarded by members of the black community, due to a rather burgeoning record of insensitive remarks on racial matters. These ranged from referring to a black member of his staff (clearly an administrative oversight how that ever happened) as "boy", to praising the fine work of the Ku Klux Klan. I think that was the problem, though it could also have been his vigilant efforts to protect America from the evils of voter fraud, as he prosecuted three civil rights workers over the alleged crime of 14 supposedly tampered ballots out of 1.7 million cast in the black counties of Alabama. A whopping four hours after resting his case, the jury acquitted the defendants. But, then, you know how sympathetic 'Bama juries can be to black civil rights workers, eh?

Anyhow, it's amazing that this monumental reversal of epic proportions wasn't all over the media this week. I mean, seriously, whoddathunkit? Republicans, in our lifetimes, going to the wall, fighting the good fight, to protect America from the evils of racial discrimination!! Of course, maybe the fact that the alleged victims of the discrimination in this case happened to be white males had something to do with this story of the decade getting buried. Leave it to those bastards in the liberal media to get all hung up on details, huh?!

Republicans newly constituted as brave champions of the civil rights movement is only the latest of grand fictions to emerge from the hearings, however. For more than two decades now, we've been indulging in two others as well.

The first of these is that the Senate Judiciary Committee hearings are actually hearings, as opposed to, say, clumsy choreography by men of ill-repute clad in ill-fitting suits. I trust that the Sotomayor non-hearings gave the lie to that notion once and for all, though in fact we've been living though this ritual for a long time now. More precisely, we've been doing it ever since 1987, when Robert Bork was stupid enough to scuttle his own nomination by more or less truthfully answering the Committee's questions, and thereby exposing himself as the great champion of contemporary values (in the thirteenth century) he actually was.

No nominee since then - Republican or Democratic - has been that foolish. Now, they all hide behind the notion that they cannot express a position on any given question that might come before the Court, because they would be expected as justices to enter into the consideration of any such case without allowing any personal prejudices to hold any sway. There is actually some real legitimacy to this position, at least if you assume the Court to be a non-political branch of government (more on that shortly), but that has little to do with why nominees invoke that shield. They do it to avoid being Borked by the other side.

What to do, then? How can we screen these people before we anoint them with a lifetime's worth of enormous power? The obvious answer is to dwell on the nominee's own record in the hearings, and to make the nominee hold forth on the appropriateness of previous Court rulings. Some of that occurs, but mostly that has become a joke too. If the case in question is old enough or no longer controversial enough, you can get nominees to cheerfully and vigorously adhere to society's consensus view when asked by a Committee member. Marbury vs. Madison? Damn right! Totally for it. But if it's remotely recent - say, Bush vs. Gore - forget about it. As to their personal records, they've all taken to adopting absurd fictions such as "I was just doing what my supervisor instructed when I wrote that racist legal brief as an employee of the Reagan Justice Department", or "I was just sort of thinking out loud about the philosophy of jurisprudence when I gave that speech saying there is no constitutional right to privacy".

This is nonsense, and it says everything about the Committee's pathos that anyone with the title of senator would ever accept such a jive answer. If your boss asks you to do some research for a speech he's gonna give articulating a position you don't particularly like, okay, you hold your nose and do it. If he asks you to help deprive an entire race of people of their voting rights, you quit your freakin' job in protest, dude - unless, of course, you happen to secretly agree with that idea. Otherwise, though, that particular alibi went out back in 1945, in a little German town you may have heard of...

My favorite moment of the last decades of this embarrassing ritualized dance came when Samuel Alito's 90 year-old mother played the Toto role and inadvertently pulled back the curtain to expose her son's lies. Alito was about as pro-choice as the pope, but he had to play the game of telling the Committee that he had no position on Roe vs. Wade. But then some reporter shoved a microphone in the face of Rose Alito - who was either fresh off the boat, or should have been - and she forgot to lie, saying of her son, "Of course he's against abortion!" Then, too, there was the small matter of the fact that he himself happened to have also said so in a job application to the Reagan (In)Justice Department.

Alito had also been a member of the "Concerned Alumni of Princeton", which opposed admitting women and minorities to the University. Lovely, eh? So he pretended during the hearings to have forgotten all about the group, and Republicans on the Committee - you know, the same ones who have quoted the "wise Latina" phrase about sixteen thousand times in the last week - took great umbrage at their guy being portrayed as a racist. Whereupon, in one of the great acts of political theater in my lifetime, Sammy's wife Martha Ann began to "sob" and "had to leave the room", so upset was she at the rough treatment being given her husband.

Boo-hoo. But guess who's on the Supreme Court for life now? Guess who's just waiting for one more regressive vote to strike down the tatters of what is left of Roe? Guess who can't wait to smash the Voting Rights Act to pieces?

Ironically, it is this fiction of not having political predispositions which, more than any other evidence, gives the lie to the other long-standing one. Political parties and ideological contenders care about the Supreme Court of the United States. A lot. This is especially true of the radical right, which made capturing control of the Court its single most important mission over the last two or three decades. They were delighted when George W. Bush stole the presidency in 2000, but only in part because he would cut spending for real Americans, fight lots of wars against bad smelling brown people with the wrong god, and shred the environment for fun and profit. What they really, really got excited about was the idea that he would be making appointments to the federal judiciary, especially the Supreme Court.


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So the last fiction is that we pretend that the Court is some neutral, apolitical, nonideological arbiter of justice, that somehow 'interprets' the law, rather than making it. But the previous fiction makes clear that that isn't the case. Nobody would bother with the bloodbaths and the lies which have come to constitute these Senate hearings if we were just appointing legal technocrats to the bench. The real truth is that the Court makes law. In fact, a lot of it. And that they do it in absolutely predictable ideological ways, as if they were a legislative body of some sort. You can see this as easily in the pattern of their voting as in the huge efforts ideological groups invest in supporting and blocking nominees. On any given closely fought ideological issue before the Supreme Court today, you can very, very safely bet on the voting pattern of the nine justices. The regressive bloc of four will always support conservative positions on social questions, state and corporate power over individuals and the public interest, and executive power over the other branches of government. The moderate bloc will mostly take the other side, though a bit less dependably. Justice Kennedy (the guy who got Bork's slot) will decide whether the case is a 5-4 decision or a 4-5 one, though he will join the regressive bloc about three times out of every four. Simple as that.

And that is why it's a joke to pretend that the Court is not legislating from the bench, or that regressives don't want it to. If it wasn't making political decisions based on personal politics, you'd never be able to predict where the justices will come out on a given issue, let alone get it right almost every time. Nor would all these groups - on both the left and right - as well as members of Congress, invest so much energy in fighting over these appointments. Indeed, you wouldn't even be able to use terms like 'conservative justice' or 'liberal justice'.

Which raises a pretty profound question. If this is a democracy, why are we allowing a group of people - as few as five - who were not elected, who basically cannot be removed unless they're caught stealing computer printers off the Court's loading dock or something along those lines, and who confer and decide in total secrecy - why are allowing these folks to be the last stop in the making of national policy? Truly, the only thing more non-democratic than such a system would be a monarchy or dictatorship, and only because it would be one person rather than five.

Should we kill the Supreme Court, then? (I don't, of course, mean to literally take out its members, though in one or two cases I could perhaps be persuaded.) Of course, this will never happen any time soon because of the scope of constitutional change entailed. But the proposition is worth pondering. Is there any reason that we need the Court?

The answer is yes and no. Yes, in the sense that there probably needs to be a final appellate body of some sort, where technocratic matters of law - as opposed to national policy - get decided. But also, no, in the sense of the Court's greatest power, known as judicial review, which is the authority to make law, especially in the negative sense by striking down legislation passed by Congress and signed by the president. It isn't by any means necessary to do it that way. Indeed, some democracies don't, and probably none do it to the degree we do. In Britain, for example, Parliament is supreme. Period. Full stop. The only institution that can undo the will of today's Parliament is tomorrow's. Not only does that system fit perfectly well within the confines of any reasonable definition of democracy, it is in fact quite arguably considerably more democratic than our system. Policy is made by the people's elected representatives - and only by them - who are fully subject to replacement if they make choices the public doesn't like (see, for example: Brown, Prime Minister Gordon, and the election of 2010). While Congress may very much prefer the cover provided by removing politically radioactive decisions from its hands and placing them into those of an untouchable bench, I don't.

The United States has the essential structure of a governing democracy, though there are certain major caveats to that form that - especially collectively - render the whole rather dubious. Low levels of participation, a voter registration system that discourages participation, a completely broken campaign finance system, an Electoral College that can and sometimes does select the occupant of the most important office in the land against the will of the people - these are all examples of key factors which hollow out the democracy part of American democracy. Likewise, without question, is decision-making by unelected, unaccountable and unremovable officials. In other parts of the world they are called dictators, or members of a junta. Here, we dress them up in black robes and call them Supreme Court justices.

There is one possible exception to these objections, by which the Court could be valuable within the context of an otherwise democratic system, and indeed, the Founders may have had this mind when they created the institution. Democracy - meaning rule by popular will - is all well and good, except that the public is all to often stupid and cruel, and sometimes ferociously so. Politicians, being politicians, will unfortunately tend to follow wherever the public leads, rather than lead the people to a more enlightened place (and, of course, when these political figures do lead, all too often it is into the darker quarters of human society, for the sake of political expediency). What all this means is that out-groups may have a very rough ride of it. Why should accused criminals get due process? Just hang 'em! Why should blacks or women get equal treatment before the law when that will only diminish the spoils enjoyed by majority white males? Why should communists or Jews (and what's the damn difference, anyhow?) get free speech rights? They hate America!

Left to their own devices, it will be a rare Congress or president who will stand up for the right to a fair trial for an accused child murderer. Nor will you see them trying to explain the philosophical nuances behind anti-discrimination rulings, when the punch line still remains that a voting constituent is losing his job. This is where a Supreme Court that is insulated from political firestorm can potentially stand for principle, without risk of backlash. Undoubtedly, this is why the Founders gave them lifetime appointments.

The Warren Court of the 1950s and 1960s was a keen example of this very notion, but also a rare one, and also - in regressive circles, especially in the white South - a hated one. A federal judiciary that will uphold the rights of unpopular out-groups when elected officials are acting as profiles in cowardice sounds like a pretty good idea to me. But, of course, regressives hate that notion, just as they despised the Warren Court, and that brings us back to the current cycle in which we find ourselves, where the Court has become highly politicized and has been subject to a fairly successful attempt by the right to load the bench up with Neanderthals, particularly young ones who can spend the next forty years of their lives wrecking the country, completely unchecked.

Which is pretty much where we're at today. With the uncommon exception of those moments when Anthony Kennedy decides to live up to the meaning of the title "Justice", this Court decides with regularity in favor of corporations over plaintiffs, in favor of government power over civil liberties, and in favor of executive power over the Bill of Rights and the checking and balancing of separated powers. Woo-hoo. Cool, huh?

As if that isn't sobering enough, consider what would have happened if George W. Bush had had one more appointment, replacing a moderate on the Court (one of whom - Justice Stevens - is about 90 years old). That would have locked in a solid five-vote majority for the Dark Side, and with mostly young justices in the bloc, to boot. That is, a gift of regressive politics that would have kept on giving for another generation or two, regardless of who was getting elected to Congress or the White House.

For that matter, consider if Reagan and his worshipers had gotten what they originally wanted - either in the person of Robert Bork, or in an Anthony Kennedy who wasn't so disappointingly 'liberal'. Or if David Souter hadn't turned out to be the grand disappointment to scary regressive monsters that he did. In any of these scenarios we would have had that solid five (or even six) vote majority of evildoers, and we would have had it for quite some time now. The current Supreme Court has been pretty bad, not least including Bush vs. Gore, which metastasized its disastrous politics all over the world. But, believe it or not, it could have been a lot worse, and it well may be yet.

Which brings us back again to the question, why have such a court at all, or at least a court with such powers?

Given that the potential benefits described above have historically been rarely manifest, given the grim alternative of an untouchable fount of regressive policies lasting for decades, and given the fundamentally undemocratic nature of such a system, I say, let's not. I'd rather take my chances on a bunch of knuckleheads in Congress and the White House who at least have the virtue of being replaceable.

I say, kill the Court.

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David Michael Green

David Michael Green

David Michael Green is a professor of political science at Hofstra University in New York.

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