Court is in Session
Judicial “Planetary Tilt”
(Photo by Ian Hutchinson for Unsplash)
The October-November Session of the US Supreme Court has been one of the busiest, most complicated and consequential — for a nation governed by laws — set of cases to deliberate in recent memory. We have heard and will hear arguments on gun carrying policy, abortion rights, capital punishment, gerrymandering (probably), and… what’s left?…Casino gambling on government lands?
In this judicial ‘planetary tilt,’ which comes once a generation, let’s take a look at the players.
The three recent ‘45 appointees,’ Gorsuch, Kavanaugh and Barrett, don’t belong in this institution. One, Justice Kavanaugh, qualifies for disbarring (for lying to Congress) and for prosecution of sexual assault. The other two, Justices Gorsuch and Barrett, are sitting on the Court, ‘illegitimately,’ if one associates the benefits of tradition, norms and respect with exercise of jurisprudence at the “highest court in the land.” (1)
Gorsuch occupies the former place of Merrick Garland, currently Attorney General, whose Obama appointment was frozen by then Senate Majority Leader Mitch McConnell, whose reasoning — an ‘election year Executive appointment ’— didn’t deter McConnell from ramming through Barrett’s appointment approval a scant 90 days before the 2020 election. 45 was so elated at this legerdemain that he bragged that with a reconstituted Court, Roe v. Wade would become a piece of arcane case history.
He may be right.
Of the other 6 justices, two — Alito and Thomas — subscribe to the late Justice Antonin Scalia’s judicial hagiography, referred to as “originalist and textualist.” (2) The remaining four comprise two Obama appointees, Sotomayor and Kagan, and two from previous administrations — Bush/43 (Roberts) and Clinton (Breyer).
Recalling appointee histories reveals an increasing politicalization of the Court, due in part to social issues which have become opportunities for political division and vote harvesting — notably abortion rights and gun violence protection. The determination to deliberate ‘outside’ political and ideological pressures has become a pipe dream.
So Justices Breyer, Barrett and Thomas lamented recently. (3)
As if this frustration were not enough, the ‘militancy’ of Executive appointment, practiced by 45 and his cohort in the Senate has turned the Court away from centrist. ‘institutional,’ tradition pulls.
The role of Chief Justice as Chief Arbiter and Spokesperson has evaporated. Chief Roberts’ observations land on page ten.
Nobody is listening.
Scrambling reporters try to scoop the ersatz ‘militants ’— Thomas, Alito, and the three newbies. Because that’s five votes, which means that if the ‘militants’ are of a single voice, game over for Roberts as Chief Arbiter: there is nothing left to mediate.
Loyalty ‘trumps’ consistency; loyalty ‘trumps’ fairness.
Little appreciated by the public is that behind each Justice is a legal staff, legal researchers, law clerks, a life appointment and a legacy: an institution within an institution. Nothing, in short, to hinder deciding critical judicial issues and writing opinions for generations to follow and critique.
Unless ‘loyalty’ gets in the way.
3- Gersen and Liptak