On Tonight’s Column The Supreme Court In Existence Since 1789 But Something Progressives Only Realized The Importance of in 2017
(With Apologies to John Oliver)
As I’ve written quite a few times in this column I admire and respect John Oliver immensely. I’ve loved him since I first met him on The Daily Show, fondly remember the summer of 2013 when he hosted it and have loved Last Week Tonight for the last ten years.
Despite what he will tell you he is hysterically funny and shines a light on so many issues that most people, myself included, could not comprehend in a hundred page book. I admire his bravery and I respect his comic bluster. And when a few weeks ago he explained to the entire world just how messed up the SSI and SSDI payment system is, I felt seen in a way entertainment hasn’t in a long time and that no representation on any fictional TV show ever had.
But that doesn’t mean I don’t recognize his flaws, among with our an increasingly clear tendency towards the left. There are some places where his blindness is worse than others (it comes across in foreign affairs more than you’d think) but it can be just in clear in the many problems with our domestic agenda. To his credit he is honest enough to know that most of the progressive solutions he argues for are unfeasible in our current form of democracy and he doesn’t lecture the way other comedians such as Bill Maher do towards his audience.
The purpose of this article is, however, not to admonish Oliver’s leanings but to discuss a subject that has become a trend not only with him but so many progressives over the years: the Supreme Court. To Oliver’s immense credit, he is not a Johnny-come-lately to the subject. Almost since his show began he has been very clear about the flaws of the Supreme Court as well as the problems that might lie ahead. And he knows very well where the blame is in a way most progressives won’t. When Neil Gorsuch was on the verge of confirmation in 2017, he acknowledged how dangerous he was and told his audience: “you will have two elections in which to do something about it. The first will occur in 2016, the second in 2014.” That is a more direct placement on the blame of the electorate in one minute then I’ve seen Daily Kos do in five years.
Oliver, of course, is hardly alone about the slant of the Supreme Court in recent years. There have been many discussions of it in the media, particularly MSNBC and CNN, and a multi-part documentary on Showtime last year. But for all the handwringing that has been done over the court in the last several years, everybody seems to have a fundamental lack of understanding of what the Supreme Court’s role in America really is. They are right to be worried about its increasingly rightward leaning, I’ll grant you, but there is a very real argument that so much of the conflict over it ignores what the Court was up until very recently — let’s say 2000. I should mention the outrage over the court is also relatively recent and selective. There was outrage as Bush V. Gore at the end of 2000, but up until that very moment I don’t remember any one of either party making the Supreme Court front and center of electoral politics. Nor did it resurface during the next decade and while the court increasingly made decisions that confirmed a right-ward lurch, I don’t remember anyone making an argument about how important was during the 2016 campaign for President. It wasn’t even until after the 2020 election when a Democrat was President that reform was discussed almost every minute by the Democratic party and even that had no basis in reality.
I’ve talked about the court in several of my articles involving history over the past two years and I have a far greater understanding of how it works and what its powers are then many people, and certainly most progressive. It is the benefit of having a historian for a father, who worked at the Supreme Court during the 1970s (when according to the left the Supreme Court officially began to destroy America as we know it) and who has an understanding of Constitutional law and judicial history then someone like me can ever hope to learn. I have absorbed some of this and while I’m nowhere near the authority on the Court that he is, I certainly understand what it can and can’t do. So this article will discuss the Supreme Court, some critical myths about it, the period that so many people are still divided on and why whatever discussion of reform is thoroughly misguided because it leaves a very critical piece out.
Let’s start with something we all learn in grade school about the three branches of government: the legislative, the executive and the judiciary. Congress is the federal representative of the first and it makes laws. The executive — the President — enforces the law. The judiciary — the Supreme Court — interprets the law.
It might be considered blasphemy to argue that the Supreme Court is still doing exactly what it is doing now as it was when it was established. But as we all know the Supreme Court is still interpreting the law. To be sure Samuel Alito and Clarence Thomas have a very different interpretation of the law than Sonia Sotomayor and Elena Kagan do but the justices are still interpreting the laws. Their proclamations, as the left doesn’t understand but the right does, are not carved in stone and the final say on the matter. The court is still essentially waving a wand and seeing what will happen. The right, of course, know this and has been working in a way to make sure it fits their agenda more than it does the left. But the Court is not the final authority. I realize that much of this does have to do with a gridlocked Congress, but that is not the subject of this article. (I will get to it in a different one.)
Now there’s been much argument over the last quarter of a century as how the court is supposed to act as an ‘independent judiciary apart for politics’. I’ve found this ironic in two ways: first because justices are appointed by Congress, which by definition is a political entity and two, for the first two centuries of its existence many of the most significant justices were either elected officials or critical in politics. This starts with our first Chief Justice John Jay, who served in the Second Continental Congress, was Washington’s first Secretary of State and then resigned to serve as Governor of New York.
Throughout the 19th century and well into the 20th, a considerable number of Justices, associate and Chief were politicians. John Marshall served a term in Congress was Adams’s secretary of the state for the last six months of his Presidency and was named by him as Chief Justice before Adams’s left office. Salmon P. Chase was first Senator and then Governor of Ohio, served as Lincoln’s Secretary of the Treasury and was named by Lincoln to replace Roger Taney as Chief Justice. Edwin Stanton, Lincoln’s Secretary of War was named by Grant to serve as an associate justice but he died before he could take office.
William Howard Taft, of course, was President before he became Chief Justice and when he left the court in 1930 he was replaced by Charles Evans Hughes who had been Governor of New York and had served as Associate Justice before resigning in 1916 to run for President as the Republican nominee. Many members of the Roosevelt court, including Hugo Black and James Byrnes had been Senators and Joseph Robinson, the majority leader had been named to the bench before dying of a heart attack. Earl Warren, as I’ve written about before and will write about again, had won three consecutive gubernatorial elections in California, had been Tom Dewey’s running mate in 1948 and had tried to run for the Presidency in 1952. Eisenhower promised him the first available seat on the Supreme Court and tried to backtrack when Chief Justice Vinson died in early 1953 — Warren held him to it.
Arthur Goldberg had been secretary of Labor under Kennedy and was named by him to replace Frankfurter in 1962. He resigned to become ambassador to the U.N under Lyndon Johnson. He was replaced by Abe Fortas who had been Undersecretary of the Interior under FDR and Truman before Johnson. Sandra Day O’Connor, the first female Supreme Court justice was the last member of the Court to hold elected office: she had been a member of the Arizona Senate for three terms before she became judge of Maricopa County. She’d gotten started when she served on Barry Goldwater’s campaign for President in 1964.
So the idea that the court is supposed to be above politics is a hard argument to make when so many of his most celebrated members have been ‘in the arena’ themselves. Indeed, given how effective many were as justices, there’s an argument we should have more elected officials on the Court instead of taking them from the bench.
I now want to deal with the three ‘worst decisions’ the Supreme Court ever made: Dred Scott Vs. Sanford, Plessy Vs. Ferguson and Korematsu v. United States. They are considered horrendous decision because of their morality: they supposedly made the law of the land, slavery, segregation and Japanese internment.
I used the word ‘supposedly’ because in the first two cases all Dred Scott and Plessy did was give a legal blessing to what everyone knew was true already. Dred Scott inflamed abolitionists and secessionists for the same reason: it didn’t clear anything up to either’s satisfaction. When the Plessy decision was reached I imagined that for both whites and African-Americans they would have considered it is as surprising as water being wet. And as for Korematsu, it just gave legal cover to the bigotry that all Asian-Americans were already facing. These might have been immoral decisions but the court is not a moral institution; it’s their to interpret the law. And during this entire period America was conservative in every sense of the word when it came to race. It would have been radical if in any of these cases the court had struck down slavery, separate but equal or Japanese internment — and more importantly, it would have been meaningless in 1857, 1896, and during World War II for the people most afflicted. The only way to change things would have been through acts of Congress and Presidents who were willing to enforce the laws. It’s safe to say neither the executive branch nor the legislative would have been willing to do so back then.
Indeed for the first 160 plus years of the court’s existence, it was fundamentally conservative in all the ways that counted — and almost nobody objected to that. FDR was inflamed by it and as I’ve written wanted radical reform in 1937 — and it was by far the most divisive act of his entire Presidency.
It only began to change when Warren became Chief Justice in 1953 and the so-called Warren Court began. This era, which progressives think all future courts should model themselves after and all conservatives have been trying to walk back ever since, basically occurred over 1953 to 1969 when Warren retired. And in case you’ve forgotten your history (and progressives can be selective in that part) that is the period where civil rights legislation reached its peak and was enforced by three different Presidents. The court might be considered liberal, but the only reason it had the power it did was because all three branches of Congress were willing to basically be in accord on civil rights.
And lest we forget, the major area of the country where segregation was law of the land thoroughly objected to the idea. In their mind ‘Plessy Vs. Ferguson’ was ‘settled law’. James Byrnes, who had briefly been on the Roosevelt Court was elected governor of South Carolina because of the threat of integration. The Southern Manifesto, circulated by Strom Thurmond and signed by all but three Southern Senators, was written in large part out of objection to the Warren Court’s ruling and the Eisenhower administrations movement towards civil rights. We all know about the Southern segregationist governors, from Orville Faubus to George Wallace, who thoroughly resented government interference in how the South ran things.
When Lyndon Johnson signed the Civil Rights Bill into law, he knew very well the consequences: “We just gave the South to the Republicans for a long time to come”. He knew something that so many people on the left have never accepted and still can’t. Congress can enact any law it wants. The President can enforce it and the Supreme Court can interpret it but even if all three branches were working together perfectly, they can’t do a damn thing to change how people think. You can’t regulate bigotry no matter how much you want too. All you can do is hope that over time it dissipates or erodes.
Progressives have gotten outraged about the Supreme Court’s actions over the last decade for justifiable reasons. But I think there’s an argument at least part of it is due to a difference between how they see the world and how the right does. The left believes that once a law is made, once it has been legislated, enforced and interpreted by the Court, everyone should just consider the matter over and done with. The problem is that only works in an academic world and not the real one. Nothing the Warren Court did could get rid of racism, any more than Roe ended the pro-life movement or the Obergefell decision got rid of homophobia. Just because a law is accepted as constitutional doesn’t mean the fiercest opponents of it are going to shrug their shoulders and consider the battle lost. The Civil Rights movement was essentially founded on the idea that Plessy V. Ferguson was morally wrong and it was justifiable to disobey it. What makes the conservative movement any less wrong in their opinion, other than the fact that there’s a different set of people who believe they are wrong?
And it’s worth noting that the left’s idea of ‘reform’ is in keeping with their entire attitude towards anyone who disagrees with them in general. That decision, which has been around Congress ever since Biden was elected, was essentially a variation on FDR’s plan and allowed Biden to nominate four more Justices to the Supreme Court, therefore giving the court a liberal majority. Not only does this ignore a very obvious problem (it’s based on the principle the GOP will never win the Presidency again) it speaks to the left’s solution to everything: as long as there are more of us then the opposition, we don’t have to take their concerns seriously. I find the GOP’s decision for enforced minority rule utterly undemocratic. But the idea that the solution is too simply make sure that there are more on our side then theirs is just as horrible. Neither does anything to resolve the divides in our nation, and both are variations on essentially ignoring the opposition for one’s own agenda.
That’s why everyone, from Bernie Sanders to Rachel Maddow to, yes, John Oliver who argues that the Supreme Court, like all of are other institutions in our democracy can be ‘fixed’ if we just put in more people of the ‘right mind’ to overrule the bigots is not a real solution. It’s punting it down the road and hoping that things will get better rather then doing the hard work to make sure things actually get better. I don’t blame them for this idea; it’s increasingly becoming the mindset of both parties and a huge amount of people across the country. But it’s not a solution. It’s a band-aid on a gaping wound rather than trying to actually fix it.