Supreme Court Self-Immolation

By GENE NICHOL

May 2, in a leaked draft opinion by the United States Supreme Court’s angriest political ideologue, it was revealed, in full color, that our most elevated and famed tribunal is about to leap off the cliff. Casting aside every conceivable interest except partisan conformity, the Supreme Court will, in June, formally end its (perhaps undeserved) tenure as a respected American institution. Early this summer it will, finally, set itself ablaze and re-constitute as a branch of the Republican Freedom Caucus. So long.

This has been on its way for many years. Justices have been nominated, despite all claims to the contrary, almost exclusively because of their political ideology. No one thinks most of the characters on the Supreme Court are there because they’re the best lawyers, or best judges, in the country. Presidents and senators are confident they are selecting a vote for their favorite public causes. And they hope the proffered position will be long lived. Very long lived. Life tenure ups the ante markedly.

Judicial candidates “dissemble” relentlessly. To recall, during his 2018 hearings, Justice Kavanaugh said he regarded the 1973 Roe decision as “settled precedent of the Supreme Court.” Beyond that, he continued, “one of the important things to keep in mind about Roe is that it has been reaffirmed many times over the past 45 years” – most pointedly in Planned Parenthood v. Casey in 1992. It is “precedent on precedent.” Yeah.

As it turned out, Kavanaugh spoke just as truthfully about Roe as he did about sexual assault. Big surprise. No one in the country believed him. Even Susan Collins is not that clueless. Hypocritical, no doubt; dishonest, surely; but not clueless.

Almost as guileful, shortly after taking her seat, Justice Amy Coney Barrett explained (ironically) to the Mitch McConnell Center at the University of Louisville that decisions of the high court are not driven by political views. “My goal is to convince you that the court is not comprised of a bunch of partisan hacks,” she said. One thing is absolutely certain about both Kavanaugh and Barrett. Each knew they would overrule Roe at the earliest possible opportunity. The majority of their colleagues were in exactly the same position. That’s precisely why they were chosen. Everybody knows it. Even if they deny it.

Chief Justice Roberts was seemingly furious about the leak. Announcing an investigation, Roberts declared he wouldn’t permit the “singular and egregious breach of trust to undermine the integrity of our operations” or to diminish the justices’ intense “dedication to the rule of law.” As if it took a Politico story to do that.

Preferred Republican justices consider themselves tied to the constitution’s text and history, except when they don’t. No originalist could defend Citizens United (corporate money as speech), Heller (guns), the prohibition of affirmative action by the federal government, the three-time trashing of the Voting Rights Act, the court’s expansive claims of regulatory taking, the creation of a swarm of states-rights doctrines to thwart congressional power, or the newly-invented limits on the reach of the commerce clause. These constitutional transgressions arise simply because Republicans don’t like them. Oddly, the constitution perfectly coincides with their political predilections. Convenient that.

So we now enter a new arena – exploring how profoundly the Supreme Court can crush the American democracy in service of right-wing, equality-suppressing, Republican politics. These are not justices. This is not a court. The nation would be better served by shutting its doors. Pretense does nothing to serve democracy. Neither do these pols in black robes. It’s probably good for us all to understand that.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, June 1, 2022

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