On September 10, Chief Justice John Roberts defended the authority of the Supreme Court to interpret the Constitution, saying its role should not be called into question just because people disagree with its decisions. When asked to reflect on the last year at the court in his first public appearance since the U.S. Supreme Court overturned Roe v. Wade, Roberts said he was concerned that lately some critics of the court’s controversial decisions have questioned the legitimacy of the court, which he said was a mistake.
Chief Justice John Roberts was quoted as saying:
“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate. … If the court doesn’t retain its legitimate function of interpreting the constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is.”
Roberts also said it was “gut wrenching” to drive into the Supreme Court that was surrounded by barricades every day. The barriers were installed in May when protests erupted outside the court and outside the homes of some Supreme Court justices after there was an unprecedented leak of a draft opinion indicating the justices were planning to overturn Roe v. Wade, which provided women constitutional protections for abortion for nearly 50 years.
The link to quoted source material is here:
CONFIDENCE IN U.S. SUPREME COURT SINKS TO HISTORIC LOW
On June 23, a Gallup poll reported that confidence in the Unites States Supreme court has dropped sharply over the past year and reached a new low in Gallup’s nearly 50-year trend. Twenty-five percent of U.S. adults say they have “a great deal” or “quite a lot” of confidence in the U.S. Supreme Court, down from 36% a year ago, and five percentage points lower than the previous low recorded in 2014.
The prior low in Supreme Court confidence was 30% in 2014, which was also the year when confidence in major U.S. institutions in general hit a low point, averaging 31%.
Public confidence in the Supreme Court has been lower over the past 16 years than it was before. Between 1973 and 2006, an average of 47% of U.S. adults were confident in the court. During this 33-year period, no fewer than four in 10 Americans expressed high confidence in the court in any survey, apart from a 39% reading in October 1991 taken during the Clarence Thomas confirmation hearings. Since 2006, confidence has averaged 35% and has not exceeded 40% in any survey.
“Confidence in the Supreme Court is down by double digits among both Democrats (30% to 13%) and independents (40% to 25%), but it is essentially unchanged among Republicans (37% to 39%).
The Democratic figure is the lowest Supreme Court confidence rating Gallup has measured for any party group historically, eight points lower than the 21% figure among Democrats in 2019. Independents’ 25% confidence rating is the lowest registered for that group historically, with the prior low being 28% in 2015.
Republican confidence has been lower in the past than now, with the 26% measured in 2010 still the lowest for GOP supporters to date. That low point occurred after Barack Obama picked a liberal justice, Sonia Sotomayor, in 2009 and nominated another, Elena Kagan, in 2010 before the poll was conducted.
While Republicans’ confidence hasn’t changed much in the past year, it has come down significantly from 53% in 2020. That measure was taken during Donald Trump’s reelection year — after he had two of his nominees confirmed to the Supreme Court, but before a third Trump justice was confirmed days prior to his being defeated for reelection in November.”
The link to the Gallup poll results is here:
SUPREME COURT DOCKETS REPUBLICAN POLITICAL AGENDA
On June 6, it was reported that the Supreme Court has agreed to hear arguments in a North Carolina redistricting challenge that could have profound implications for how states manage presidential and congressional elections. The appeal from North Carolina Republican lawmakers could significantly weaken the ability of state courts nationwide to review laws for federal elections at a time when the Supreme Court has become increasingly partisan.
The case of Moore v. Harper involves and appeal where the North Carolina Supreme Court undid an extreme partisan gerrymander of the state’s congressional map that would have given Republicans a large advantage in races for House seats. Several Republican state legislators asked the Supreme Court to restore the biased map for this spring’s primary elections. Their emergency filings claimed that the North Carolina state supreme court didn’t have the power to even review the legislatively drawn congressional map, despite the fact that the map violated several guarantees in the state’s constitution, because, in their view, neither state courts nor state constitutions should have a say in how federal elections are run. Republicans are challenging not only whether the North Carolina court got its decision right but also whether state courts have any role to play in reviewing laws passed by legislatures that deal with federal elections.
Links to quoted and related sources
Republicans control a majority of state legislatures and there is a coordinated effort to disenfranchise voters by not allowing for “mail in” balloting and requiring in person voting on election day. Americans are losing faith in elections after years of hearing false claims of widespread fraud from former President Der Führer Donald Trump and his allies. After the 2020 presidential elections and Der Führer Trump’s unfounded allegations of voter fraud, Republican control legislatures rushed to change their election laws asserting election law reforms were needed to protect the vote from widespread fraud when there is no fraud.
At the center of the dispute is a clause in the Constitution that delegates responsibility for federal election rules to the “legislature” of each state subject to oversight by Congress. Republicans are saying the plain meaning of the constitution is that state legislatures, and only state legislatures, have the power to set those rules. Such a reading of the clause would cut governors, election officials and state courts out of the rulemaking process giving all power over federal elections to the legislatures who could simply invalidate an election saying it was fraudulent.
At least 4 of the conservative justices have already signaled varying levels of interest in the idea of giving legislatures more power, embracing “the independent state legislature doctrine”. Associate Justice Brett Kavanaugh said that the North Carolina lawsuit presented an “important” question and that “both sides” had “advanced serious arguments.” Kavanaugh and Chief Justice John Roberts have long been viewed as near the ideological center of the court but given how they voted to overturn “Roe v. Wade”, they could easily change their minds and Kavanaugh has shown he is not above lying saying he is impartial and has not made a decision as he did with Roe v. Wade.
Michael Kang, a law professor and elections expert at Northwestern University had this to say:
“We’re in a different era now that we really opened the door to – however you want to think about it – manipulating or changing the election law in ways that seem designed to advantage one side. … “
VOTING RIGHTS NOT THE ONLY THING SUPREME COURT WANTS TO DETROY
Supreme Court Justice Clarence Thomas is a “strict constructionist” in interpreting the United States Constitution. Strict constitutional constructionist stands for the proposition that that a constitutional right does not exist if it is not specifically provided for in the constitution and such rights are reserved for the states to decide. Such rights include same sex marriage, access to birth control, the right to privacy and perhaps even inter racial marriage.
Justice Thomas writes that the Supreme Court should reconsider rights like birth control and same sex marriage in future decisions. Thomas agreed that the Roe v. Wade reversal ruling itself does not apply to other cases saying “the court’s abortion cases are unique” because they involve protecting a life and justices only considered this one set of circumstances, rather than rights granted through “substantive due process” as a whole.
However, Justice Thomas wrote in his concurring opinion:
“In future cases, we should follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away. … Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
Justice Thomas specifically said the court “should consider” reversing other precedents and he wrote:
“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. … After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Thomas argued that using the due process clause to uphold these rights is a “legal fiction” that’s “particularly dangerous” and believes the court should issue a ruling saying the court cannot grant civil rights using that legal argument.
With his dissent, Justice Clarence Thomas invites a reversal of many constitutional rights not found in the constitution, including gay marriage. The United States Constitution also does not contain any provision that marriage is a constitutional right. Thomas is married to a white woman and the question is if he will also want to reverse the case of Loving v. Virginia where the United Sates Supreme Court case struck down state laws banning interracial marriage in the United States.
The plaintiffs in the case were Richard and Mildred Loving, a white man and Black woman whose marriage was deemed illegal according to Virginia state law. The U.S. Supreme Court ruled unanimously that “anti-miscegenation” statutes were unconstitutional under the 14th Amendment. The decision is often cited as a watershed moment in the dismantling of “Jim Crow” race laws.
COMMENTARY AND ANALYSIS
It is clear that Chief Justice John Roberts is totally out of touch as to what is going on in the country or he is simply lying to himself how much his court has now become so politized to the point it has become a threat to our very democracy in order to favor a Republican political agenda.
Thomas Jefferson himself warned of “strict constructionist” like Clarence Thomas in interpreting the United States Constitution. Thomas Jefferson warned us not to regard the United States Constitution as sacred writ too sacred to be touched but a document that must “keep pace with the times”. On July 12, 1816, Jefferson wrote:
“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment.
I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.
I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.
But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
The United States Supreme Court since its very inception has been viewed with a unique “sense of awe” and respect because it consistently interpreted the United States Constitution as a “living, evolving document” meaning one that evolved and ensured and protected civil rights and remedies to conform with changing times, changing norms, changing viewpoints.
Thomas Jefferson said it best:
“Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
Without such constitutional evolution, slavery would still exist in the United States, woman would not be allowed to vote, discrimination based on a person’s gender, race, color or religion would be allowed, interracial marriage would be illegal, and the doctrine of “sperate but equal” and Jim Crow laws would still be the law of the land.
The United States Supreme Court’s legitimacy has always depended upon the public perceiving the court and its decisions as being based on the rule of law, prior precedent known as “stare decisis” and not partisan politics. So much so that labels such as “liberal”, “progressive”, “moderate” and “conservative” are used in referring to Supreme Court Justices’ philosophies instead of party affiliations. Supreme Court Justice’s and federal judge’s party affiliations are never identified or reported by the media and it’s a charade.
THE POLITICAL REPUBLICAN TRUMP COURT
The very nature of the process of selecting a Supreme Court Justices is as partisan as it gets. The overlap between “judicial ideology” and the “political ideology” and party affiliation of those who select supreme court justices is undeniable to the point that they have come to be one and the same. The President nominating and the Senate having a confirmation process leads to the selection of Supreme Court Justices whose ideological approach to interpreting the law is identical with the views shared by the political party in power in the White House and the US Senate.
Ryan C. Williams, assistant professor of law at Boston College Law School, put it in perspective in a column written for MSNBC when he wrote:
“The polarized nature of our politics has contributed to a court that is closely divided on numerous hot-button political issues — such as abortion, gun rights, campaign finance regulation and affirmative action. In the 1980s and 1990s, the partisan nature of these divisions was mitigated to some extent by justices whose views did not match the ideology associated with the political party of the president who appointed them, such as David Souter and Byron White. But since the 2010 retirement of [the very liberal] John Paul Stevens, appointed by President Gerald Ford, all of the Justices appointed by Republican presidents have been recognizably more conservative than the justices appointed by Democrats.
The court’s perceived partisan orientation has been further exacerbated by the gamesmanship and spectacle surrounding confirmations. The court’s three most recent appointees — Neil Gorsuch, Brett Kavanaugh and Barrett — have each taken office amidst controversy. Gorsuch’s appointment was made possible by the Republican-controlled Senate’s decision to deny a hearing or vote to Merrick Garland, President Barack Obama’s nominee to fill the vacancy created by the death of Justice Antonin Scalia, resulting in a 14-month vacancy on the court. Kavanaugh’s confirmation was placed in jeopardy by accusations of sexual assault that he denied, leading to a highly contentious and much-publicized confirmation hearing. Barrett’s confirmation was rapidly pushed through the Senate shortly before the 2020 election by the same Republican Senate leaders who had earlier used the pending presidential election as an excuse not to vote on Garland.
The willingness of Republican politicians to play hardball with the confirmation process and the resulting shift in the balance of power on the court has left raw feelings on the left and led to increasing calls for retaliatory measures — including court-packing. The nominees were not themselves the architects of these strategies. But nor were they mere passive bystanders. Their willingness to accept and press forward with their nominations involved at least a degree of cooperation with the sharply partisan methods through which their appointments were secured.”
Part of the greatness of the Supreme Court has always been that the public has had a tremendous respect for the Supreme Court because it has been viewed by and large as “fair and impartial” and “a political” not subservient to any political party nor religious philosophy. With the reversal of Roe v. Wade and the reversal of a well settled constitutional right for women, the United State Supreme Court has lost its legitimacy and credibility with the American people.
As the saying goes, elections have consequences. The 2022 midterm elections are shaping up to be one of the most consequential elections in our history where the Supreme Court is on the ballot as well as the control of congress, not to mention our basic right to vote in an election.
A story has been told and retold about another founding father Benjamin Franklin. Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, “A republic, if you can keep it.”