Wayne O'Leary

America’s Conservative Judiciary

Brett Kavanaugh’s contentious elevation to the Supreme Court made undeniably clear what has been rather obvious for some time: the highest court in the land, as presently constituted, is a political body that operates purely on the basis of partisanship and ideology. It’s now poised, furthermore, to do the future bidding of one party exclusively, the Republicans, as it has done for most of the 21st century.

This reality rubs against the grain for many Americans, who have a romanticized view of the Court as a hallowed institution where the scales of justice are impartially weighed and decisions are dispensed in a fair and balanced manner according to the precepts of the Constitution. That may have been true at one time in the misty past; it no longer applies, if, in fact, it ever was the case.

One of the most brilliant analysts of the Supreme Court’s historical position in American life was Robert H. Jackson, himself an associate justice (1941-54) appointed by FDR and the chief U.S. prosecutor at the Nuremberg war-crimes trials. Jackson, looking dispassionately at the Court in his 1941 classic The Struggle for Judicial Supremacy, determined it had always been, except at singular moments, a conservative institution and was intended as such by the Founding Father most responsible for shaping it, Alexander Hamilton.

Hamilton accomplished this by insisting on nonelective lifetime appointments and the power of judicial review, which could be used to frustrate popularly elected liberal governments. (Jefferson, Hamilton’s left-leaning archrival, strenuously opposed both of these concepts and favored elected judges with limited terms.) “Life tenure,” observed Jackson, “was a device by which the conservatives could thwart a liberal administration if they could outlive it.”

As the defenders of what Robert Jackson called the “economic power of property,” conservatives seized upon the Court early on to be their last line of defense against the regulatory encroachments of mass democracy represented by the voting public. They paid much closer attention to Supreme Court appointments than did liberals — they still do — and conservative justices rewarded them over the years with narrow interpretations of the Constitution’s clauses granting authority to Congress (the interstate commerce and taxing powers) and expanded interpretations of those limiting Congress, such as due process.

By the mid-20th century, when the Court was throwing roadblocks in front of Roosevelt’s New Deal, wealthy propertied interests, concluded Jackson, “had come to regard the Supreme Court as their own House of Lords and to believe they had a moral right to control its sheltering veto.” Those words could have been penned yesterday rather than 80 years ago.

Following an interval of broadly progressive jurisprudence under the Roosevelt-appointed Court and its immediate successors, things began reverting to their normal pattern (conservative justices ruling for propertied interests) in the 1970s and 1980s; there they’ve remained, becoming more predictably partisan (that is, Republican) and increasingly ideological (that is, rigidly conservative) with the passage of time.

The groundwork for today’s reactionary Supreme Court was laid in 1982 with the creation of the Federalist Society, formed to cultivate a conservative legal movement, promote right-wing judicial activists, and displace the nonpartisan American Bar Association in vetting and recommending Court nominees. It has since achieved virtual veto power over the nominations of GOP Presidents.

The hard-right legal movement had its first great success in December 2000, when the Court’s conservative majority voted 5-4 in Bush v. Gore to arbitrarily award the presidential election to its favored candidate, George W. Bush. The stolen election was the start of two decades of partisan right-wing diktats from the Court, highlighted by the Citizens United decision (2010) establishing corporate personhood, the Holder decision (2013) repealing federal voting-rights protections in the South, the Hobby Lobby decision (2014) conferring religious prerogatives on privately held corporations, and the Janus decision (2018) eviscerating public-sector labor unions.

Despite the Sturm und Drang surrounding such high-profile issues as abortion rights, it’s the legal concerns of corporations and their shareholders that, as always, most consumes conservative judicial activists. To them, it’s why the Court really exists, and the last two decades, especially the years of the Roberts Court (post-2005), have been a golden age for pro-business (and antilabor) jurisprudence. From 2006 through 2018, according to the Constitutional Accountability Center, the Court endorsed the positions of corporate lobbyists at the US Chamber of Commerce in 70% of business-related cases, including 11 of the 12 adjudicated this year.

Expect the high court to shamelessly double down on this lopsided record in future terms, with the additions of Federalist Society products Gorsuch and Kavanaugh, both movement conservatives, creating an impenetrable 5-4 hard-right economic majority. Likewise for cases of a social and cultural nature. Such a one-sided, partisan approach may seem unfair and undemocratic, but it’s wholly in keeping with Hamiltonian intentions. As another conservative, Chief Justice Charles Evans Hughes (1930-41), arrogantly remarked, “The Constitution is what the judges say it is.”

But before we sink into the slough of despond, it’s worth remembering we’ve been down this road before — in 1937 to be precise. That was the year FDR’s confrontation with the Supreme Court of his day reached a crescendo. To refresh memories, a recalcitrant Court with a conservative majority appointed by Republican presidents had taken it upon itself to invalidate the entire New Deal, striking down law after law in a flurry of right-wing reaction.

FDR responded with what has been pejoratively labelled the “Court-packing” plan — a proposal to reform the Court by appointing an additional justice (up to 15) for every one over age 70 with 10 years’ service declining to retire on full pay. Though controversial, the idea was fully constitutional; Congress had altered the number of justices by statute a half-dozen times in the 19th century, once at Lincoln’s instigation.

In the end, the reform legislation proved redundant and was withdrawn; the Court majority, reacting to FDR’s threat, first shifted their voting positions, then began to voluntarily retire, giving Roosevelt enough appointments to reverse the judicial balance and save his program.

Barring timely natural turnover, it may eventually be necessary to consider FDR’s expedient anew, or suffer through a political dark age. Suggested term limits would require a constitutional amendment, changing the numerical makeup of the Court merely sufficient votes and willpower.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, November 15, 2018

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