We have, today, the most extreme Supreme Court since the early 1930s, and it didn’t just get that way through Republican appointments. Breaking two centuries of tradition, wealthy GOP donors are now using money, gifts, and other enticements to keep the Court in line.
In this, they’re exploiting the lifetime tenure given federal judges by the Constitution. If a billionaire or industry can suck up to and build a relationship with a Supreme Court justice early enough in their career, they can be confident of decades of decisions that favor them and their interests, as we’ve seen most shockingly in the case of Harlan Crow and Clarence Thomas.
This is the exact opposite of the intention of the Framers of the Constitution.
They believed that such a secure lifetime position would mean justices could exercise actual judgement when deciding cases, rather than being beholden to any particular interest group, including the political party that appointed them.
As Alexander Hamilton noted in Federalist 78 about lifetime appointments (“permanency in office”):
“[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”
Hamilton and the other Framers envisioned a Supreme Court that was immune to public opinion, the arguments of presidents and senators, and great wealth alike.
Lifetime appointments were, they believed, the guarantee of that:
“If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”
And until the 1990s, when wealthy “donors” began courting Supreme Court justices to build “friendships” and offer “vacations” and “speaking fees,” that’s how it worked.
Prior to the Reagan era, not only did justices display considerable independence, but they also often defied their own party and its donor class.
Republican President Dwight Eisenhower once remarked, referring to his appointees Earl Warren and William Brennan:
“I have made two mistakes, and they are both sitting on the Supreme Court.”
The story is both fascinating and instructive, showing how far down the rabbit hole this Court has gone.
In the election of 1952, three-term California Governor Earl Warren put his name into nomination for president at the Republican National Convention. Four years earlier, in the presidential race of 1948, Warren had been Thomas Dewey’s vice-presidential running mate (they lost to Truman), and so was nationally known as a solid, reliable Republican.
He’d been a forceful law-and-order District Attorney for Alameda county, then California’s hard-assed Attorney General (1938), then such a popular governor (1942, 1946, 1950) that California’s then-Senator Richard Nixon endorsed him for president on the first ballot.
Thus, when Eisenhower won the nomination and the White House, his first appointment to the Supreme Court went to Earl Warren.
Warren’s credentials as a conservative Republican were impeccable, and Eisenhower and his Vice President, Richard Nixon, both celebrated when Warren stepped down from his governorship to join the Court. Eisenhower accurately called him, “a man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.”
Once on the Court, though, and no longer answerable to the voters or any other political pressure group, Earl Warren felt he could do as his conscience — rather than his party — guided him. His first truly consequential decision as Chief Justice of the Court was 1954’s Brown v Board, which outlawed racially segregated public schools.
Furious, oil baron Fred Koch helped the John Birch Society fund “Impeach Earl Warren” billboards across the United States.
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But Warren was unfazed.
Brown was followed by his pulling together Court majorities to legalize birth control and recognize the never-before defined “right to privacy” in the Griswold decision, the elimination of prayer in public schools (Engle v Vitale), the right to refuse to incriminate oneself (Miranda), the right to have a free defense lawyer (Gideon v Wainright), striking down laws against interracial marriage (Loving v Virginia), and ending a form of extreme gerrymandering by requiring all congressional and state legislative districts be of the same population (“one man, one vote” in Reynolds v Sims and Westbury v Sanders).
Earl Warren, in other words, became a constitutional liberal once he experienced the “independent spirit in the judges” that Hamilton had promised.
The same happened with William J. Brennan, a conservative and staunch Catholic who was confirmed by every Republican in the Senate except one. Brennan had never been a politician, but his judicial record made Eisenhower certain he’d rule along conservative lines.
His record was so conservative, in fact, that the National Liberal League, then the nation’s leading progressive group, vigorously opposed his nomination.
Instead, Brennan became one of the most outspoken liberals in the history of the Court, once he was given lifetime tenure.
Republicans were burned again when Jerry Ford nominated John Paul Stevens to the Court in 1975.
Stevens was a lifelong Republican; was functionally the lead prosecutor for the Greenberg Commission which removed two corrupt justices from the Illinois Supreme Court; voted as an Appeals Court judge to reinstate capital punishment and against affirmative action; and was seen as so business-friendly that the former president of Bell & Howell, then Republican US Senator Charles H. Percy, proudly put his name into nomination for the high court.
But once Stevens experienced the “independent spirit” Hamilton referenced, he became one of the Court’s most outspoken liberals. His dissent in Citizens United is must-reading today as he predicted all the corruption we’ve since seen; he wrote the opinion in Wallace v. Jaffree striking down school prayer; and he voted to legalize pornography under the rubric of free speech.
He also wrote the majority opinion in Chevron v NRDC which established the Chevron deference which — as I noted last week — the current Supreme Court appears prepared to strike down as part of their campaign against regulatory agencies.
Stevens authored the main dissent in the “guns for everybody” Heller decision, and his dissent in Bush v Gore — which handed the presidency to George W. Bush even though Al Gore had won a half-million more votes and the Florida vote was in mid-recount — was absolutely scathing, writing:
“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.”
Finally, David Souter was nominated by George HW Bush. He’d been a law-and-order prosecutor who was “noted for his tough sentencing,” and rose to Attorney General for the solid red State of New Hampshire.
That state’s Republican governor, John Sununu, assured Bush that Souter would be a “home run” for conservatives. It didn’t turn out that way, with his pro-choice vote in Planned Parenthood v Casey and his joining Stevens in opposing the Court’s handing the 2000 election to George W. Bush.
After four “conservatives” on the Court disappointed Republicans, the billionaires who fund the conservative movement set out to make sure it would never happen again, Alexander Hamilton be damned.
Wealthy donors poured millions into the Federalist Society and other groups to select, groom, and maintain the rightwing purity of future nominees. Once in office, gifts, trips, speaking fees, lavish vacations, and regular visits to the mansions and estates of high-profile billionaires became staples of Republican justices.
But with conservative judges, just like with conservative politicians, comes the corruption associated with deference to political power and great wealth (the hallmarks of today’s conservative movement).
The Republicans on the Court now regularly use the so-called “Shadow Docket” to imposed unsigned, unjustified decisions on the nation; refuse to recuse themselves in cases where their conflict of interest is clear; refuse to adopt a code of ethical conduct or even hold themselves to the lower standards required of every other federal judge; sneer at reasonable requests from Congress for testimony and accountability; and are gleefully taking America as far back toward the 19th century as they can.
And by indulging in their own corruption, they have also managed to corrupt Congress and the American political landscape.
The main source of much of today’s cultural crisis and political corruption tracks back to Republican nominees on the Court, from Lewis Powell authoring the First National Bank decision that gave corporate “persons” full “free speech” rights to bribe politicians (overturning a century of anti-corruption laws), to Citizens United (political bribery), Heller (guns), and Dobbs (abortion).
Thus, repairing the Court must be a top priority for Americans concerned about the future of American democracy. We have to restore the institution to the level of independence and integrity envisioned and articulated by Alexander Hamilton and the framers of the Constitution.
It is our absolute obligation and necessary to salvage our republic. But how?
Article III, Section 2 of the Constitution puts the Supreme Court itself clearly subordinate to Congress, which was given the obligation (“shall”) to “regulate” the Court:
“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Congress can use this power to impose a code of conduct on the Court, and must do so after the 2024 election if Democrats can regain control of the House and hold the Senate and White House.
Through much of the Court’s history, the number of justices reflected the number of appeals courts, one step below the Supreme Court. Today there are 13 of these courts, so Congressman Ed Markey this week introduced legislation to expand the Supreme Court to 13 justices.
As co-sponsor Hank Johnson (D-GA) said at the press conference announcing the bill:
“Today, a 6-3, far-right supermajority on the United States Supreme Court threatens our rights, our democracy, and our planet. To restore our democracy, we must expand the United States Supreme Court, and we must do so now. Republicans captured the Court against the will of most Americans.”
Other suggestions include term limits for justices, laws stripping the Court from jurisdiction (“Exceptions”) over money in politics while reversing their assertion that corporations have rights under the Bill of Rights, and refusal by states or other entities to abide by “shadow docket” decisions (a variation on the precedents set by Andrew Jackson and Abraham Lincoln).
All deserve serious consideration and debate in Congress, because today’s billionaire corruption of our Supreme Court justices has thrown our country into a full-blown constitutional crisis and placed democracy here and around the world at risk.
As Congressman (and senatorial candidate) Adam Schiff noted this week:
“Our nation’s highest court is not a conservative court. A conservative court would have respect for precedent. This is a partisan court, with a reactionary social agenda. And unless we are to accept the loss of our rights, the court must be expanded, rebalanced, and reformed.”
Given the current Republican control of the House of Representatives it’s unlikely the proposal to expand the Supreme Court will go far, but it’s important that Democrats — and concerned citizens like you and me — work to prepare the ground for a future Democratic majority.
We must restore what Alexander Hamilton called the “independent spirit” of the Supreme Court.
The foundations of our nation are shaking: it’s Paul Revere time. Spread the word!
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