The "Not-So" Supreme Court

 

Supreme Court Justice Clarence Thomas 

and his Pro-Trump Activist Wife “Ginny”

While the Supreme Court has stood for civil rights (e.g., Brown vs Board of Education, the 1954 public school desegregation case) and resisted a blanket executive privilege that would have otherwise exempted the President from turning in documents to a House Committee (Trump vs Thompson, decided this past January with Clarence Thomas the lone dissenter), American history is replete with the Court’s egregious and outrageous rulings. Here are a few of the worst, well before the Trump-era appointments took hold: 

Dred Scott vs Sanford (1857 – Declared that African Americans, whether free men or slaves, could not be considered American citizens. The ruling undid the Missouri Compromise and barred laws that would free slaves traveling from adjoining states), Plessy vs Ferguson (1896 - The Court's infamous "separate but equal" ruling upheld state segregation laws. In doing so, the Court enabled the gains of the post-Civil War reconstruction era to be replaced by decades of Jim Crow laws), Hammer vs Dagenhart (1918 - Congress could not ban child labor in intrastate commerce), Buck vs Bell (1927 - Upheld the forced sterilization of those with intellectual disabilities "for the protection and health of the state."), Korematsu vs United States (1944 - Upheld the internment of Japanese Americans during World War II, finding that the need to protect against espionage outweighed the individual rights of American citizens), Citizens United vs FEC (held that political donations are speech protected by the First Amendment, opening the floodgates to unlimited personal and corporate donations to "super PACs." A boon to rich right-wingers and the seed that was the impetus to the horrific levels of political polarization we face today).

As the Supreme Court grapples with the aftermath of its decisions that fly in the face of the vast majority of Americans – embracing minority extremist arguments to reverse the Court’s earlier important personal freedom/privacy cases, allowing states to worm out of Constitutional proscriptions against certain state laws by empowering individual citizens to sue to impose those otherwise banned state actions, and to impose right-wing Christian fundamentalist beliefs even on non-Christians – the Court’s credibility, legitimacy and public esteem are plunging.

Writing for the June 20th Los Angeles Times, in advance of a final decision on Roe vs Wade, David Lauter presents this analysis, in part: “For years, the Supreme Court enjoyed greater trust from Americans than the two elected branches of the federal government, but that status has eroded as Americans have increasingly seen the court as ideologically driven, several polls have shown.

“Public approval of the high court has been dropping for two years. It took a further sharp slide last month after news broke that the justices were on the verge of overturning Roe vs. Wade, the half-century-old ruling that has guaranteed abortion rights nationwide. Roughly 60% of Americans consistently have opposed overturning Roe.

“The justices, of course, are not supposed to make decisions based on public opinion — part of the point of giving power to life-tenured judges is to let them make principled decisions against the majority’s views… But as the Supreme Court justices themselves have often said, public acceptance of their decisions depends on the perception that they are, in fact, based on principle, not politics. An increasing number of Americans doubt that.”

Forbes’s Morning Consult began polling popular trust in the Supreme Court in 2020, as reported on May 12th, here are their key findings:

Morning Consult’s weekly tracking poll found 49% of U.S. adults had trust in the Supreme Court as of May 8, down from 52% on May 2 and 57% on April 23.

That’s the lowest share since Morning Consult started tracking the question in October 2020.

While trust dropped among Democrats and Independents (by nine points and six points, respectively), Republicans’ trust in the court actually went up from 57% on May 2 to 64% now.

Gallup’s numbers are even lower (they began this poll in 2000), hitting an all-time low of 40%. Bottom line: the Court is viewed as out-of-touch with the majority of Americans and is reflecting a shift towards right-wing, evangelical values. It helped earlier (pre-Kavanaugh, Gorsuch and Barrett), when Chief Justice John Roberts was willing to lose his “conservative mantle” and swing with the more liberal justices on several occasions. The three Trump appointee, despite their confirmation testimony to the contrary, have obviously created a five-person right-wing cabal within the court. Roberts has certainly lost control unless he votes with the cabal. We are slowly moving into a world where the Constitution is being interpreted along fundamentalist Christian values.

Indeed, in a 6-3 conservative majority ruling on June 21st, the Court moved one step closer to dissolving the separation between church and state. Roberts wrote the majority opinion in Carson v. Makin (expanding its ruling in Espinoza v. Montana Department of Revenue), stating ““The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” State support given to any secular private school must equally apply to faith-based private schools as well said the conservative majority. In her dissent, Justice Sonia Sotomayor wrote: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” This growing religiosity cannot help a Court that is losing popular respect.

My guess is that the negativity has only increased since as an obviously conflicted Justice Clarence Thomas, the lone dissenter in Trump vs Thompson noted above, has so far refused to recuse himself in matters relating to efforts by Donald Trump, his staff and representatives to reverse the results in the 2020 election (a vote legitimized in over 60 judicial rulings)… despite his wife’s extensive communication with White House advisors to the President and other elected state and federal officials in support of the notion of election fraud and that Donald Trump should be the named President of the United States. Although there are no direct ethical rules applicable to Supreme Court Justices, the stink from this unrecused willingness to participate in such decisions wafts throughout the Court’s chambers and towards the public that should otherwise trust the Court.

I’m Peter Dekom, and the notions of term limits for all federal judicial appointments (who otherwise serve for life) and/or a broader based, expanded Supreme Court (perhaps divided into smaller but appealable panels as is currently the structure of other federal appellate courts), are increasingly attractive options that an ungridlocked Congress could implement.