How intelligent is the Supreme Court?

Protesting Brett Kavanaugh appointment in front of the Supreme Court. Photo courtesy of the Washington Post

America has successfully “dumbed down” a branch of government.

Reader caveat: I am not a lawyer. My friends agree: ‘we are all spared.’ I am not a legal geek. nauseates me. I am an amateur political historian and a fan of social psych. I am a loyal citizen who loves country and whose opinions are well… opinions.

So prepare yourself: I think the US Supreme Court stinks. America deserves better. Here’s my argument.

Look at recent court decision history and their implications. Where are the socially transformative decisions? Shelby? Holder? Citizens United? Gore/Bush? Hobby Lobby?

Consider a case decision rendered last week, “Arizona,” Brnovich v. Democratic National Committee, №19–1257.

A lower court decision supporting the position that Arizona voting laws violated the Voting Rights Act (1965) is overturned by the Supreme Court (SCOTUS), June 28. In a 6–3 decision the Court decides that Arizona Election Laws do not discriminate nor require the test for discriminatory practice as outlined in the Voting Rights Act. For voting rights activists the decision is a two-fisted gut punch. For Election Law rewriters,. In effect the decision halts progress of expanding the voting pool and rewards local election boards for going after alleged violators. In some states one can be fined and thrown in jail for giving another voter a ride to the polling station. In some states one can face substantial fines for offering water to voters standing in line for hours. In some states one cannot vote at a convenient time which does not interfere with the work week.

In some states…

It’s “Jim Crow meets state Election Board.” Some argue the decision is worse than the “Jim Crow era.” “Dumbing down judicial oversight,” some conclude.

Protecting a just democracy is not the mission of the Supreme Court: 6 for, 3 against.

“The most telling feature of the decision,” writes in the New Yorker the day before ‘Arizona’ went public, “will not be its outcome but it’s reasoning, which could reflect a continuing cooperative compromise, or display its fault lines- a fitting capstone to a term in a year marked by fundamental challenges to American democracy.”

Writing for the dissenters in “Arizona,” claims that the majority decision places a disproportionate burden on Native Americans living in rural areas and who lack ready access to mail service. Expand this notion to include access to polling stations and at times that are convenient for voters to cast ballots

Kagan addresses the reality that the right to test restriction is marginalizing voters when outcome rests on number of “valid” votes, eg. how do you change a voting law when your vote is being suppressed, when your vote doesn’t count?

“Some of these restrictions may be lawful under the Voting Rights Act, but chances are that some have the legal impact the act was designed to prevent — that they make the political process less open to minority voters than to others.” (NY Times, July 2)

Note that the ‘Arizona’ decision has shifted the discriminatory argument from who can vote (“Jim Crow”) to whose vote counts; hence the made-up defense that the intent of these restrictions is to prevent “voter fraud,” even when past incidence of fraud is negligible. It’s not “voter fraud,” however; it’s actually “tally fraud,” “poll fraud,” “election fraud.” The Court just weighed in on ‘election fraud’ 6 months ago, (‘Trump 2020’).

So why hear this case in particular?

According to the White House, some on the high Court are flexing a political muscle as they try to separate Section 2 (protect voting rights by allowing litigation after the fact) from Section 5 (required Federal approval of changes of voting procedures) of the Voting Rights Act. Biden and company challenge that political opportunism is at work across the street from the Capitol: ‘Shelby held up so maybe Arizona will too.’

There is another, longer term judicial concern: America’s election process is becoming “privatized,” atomized into voting fiefdoms protected by ramparts of gerrymandered districts and abusive voting strictures. To paraphrase Heather McGeehee (The Sum of Us, 2021) the white “voters” don’t want to swim in the public, community pool with black swimmers (‘voters’). Eventually, the pool, a public asset, is neglected and abandoned.

Why do we parse the collective judicial breaths, looking for an empathy for democracy, a deliberation that will guide us to a more just society? No wonder we have reduced case identities to single and double word monikers- “Shelby,” “Hobby Lobby.” This lapse of respect is revealing and troubling.

Why, as we peer into the “summer court recess” and DC decamps to Martha’s Vineyard, do we feel a chill rise up our collective spines? Who’s minding the judicial store? It’s as if all hell might break loose and we’re reduced again to a velvet police state. It’s summer with its relentless unresolved street issues. No, America is not bivouacked on Martha’s Vineyard… her elite is.

“The Justices presumably understand that, if we fail to channel social conflict into legal means, it will, in part, reflect poorly on their job performance. And if the Court’s decisions lose the public respect that undergirds it’s power, it may aggravate, or even generate, social conflict.”

-Jeannie Suk Gersen, New Yorker, July 5, 2021

My argument rests on five observations:

1: The decline of the “activist Court,” aka the “Warren Court,” hastened an ascendant “demurring Court.”

Examples culled from recent SCOTUS decisions: Abet Federalism. (Gore/Bush) Throw back checks and balances onto Congress. (Shelby) Pose alternatives to higher court litigation. (Arizona)

2 A legacy in decline, as reflected by appointments to vacancies on the Supreme Court: Coney Barrett for Ginsburg; Kavanaugh for Scalia; Thomas for Marshall.

3: of service on the Court. The argument that by altering the court’s composure, relaxing court appointment strictures, will somehow reduce the Court to political whims and winds. To force a metaphor, that ship sailed a long time ago.

4: Do Justices have to agree? Why do the dissenting opinions increasingly sound like privileged rationalism? Why do dissenting opinions borrow on the logic of privilege, ultimately constrained by the majority decision?

5: ‘Group think’ has become “shared legacy.” Ginsburg’s Senate appointment was nearly unanimous. When was the last time we saw this kind of cohesion around a Supreme Court appointment?

It’s cavalier to presume that SCOTUS will change over time in composure and issue alignment, the so-called “liberalizating effect” of serving on the Court. Overall Roberts has been taciturn about the direction of the court except to argue that the court is needed to uphold the Constitution. In this regard Roberts offers space to the fundamentalist voices of the Court, the hegemony of Alito, Thomas, Gorsuch, Kavanaugh and Coney Barrett. Scalia’s ghost is in residence.

The tenor of the Court is neither personality nor direction but fundamentalism coated with gravitas. This is what the American public sees: a conservative court, more in tune with some cultural fixation on the Founding Fathers rather than precedent and social progress. Simultaneously ‘looking backwards and watching our backs.’

It’s not silly to hoist up the Supreme Court as an institution created to support the people. So argue recent proposals to alter the make-up of the Court, the tenure of the appointment and the diversity of opinion. Biden has made good on a campaign promise to appoint a Commission to study reforming the Supreme Court. Tune in later.

“Justice Breyer should do the ‘right thing’ and cede his career on the Supreme Court to a woman of color,” say some of the SCOTUS critics. The unpacking of this claim reveals the current reliance on the composition of the Court and “how we got here.”

But is this all? Is this enough?

1.McConnell and company haven’t merely packed the court, they have packed the judicial system. Where is the push back?

2.. . These social processes are being adumbrated by the opportunism of an ideological minority. Is not this what the Founding Fathers feared?

America needs to take a closer look at how Justices are trained. How America elects/appoints judges. How America holds judges accountable. And where the Constitution actually resides.

July 4



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Rodney Clough

Rodney Clough

Refuses to nap. Septuagenarian. Cliche’ raker. Writes weekly.