The Illegitimate Supreme Court!

Photo by Colin Lloyd on Unsplash

Republicans Abducted the Supreme Court by Hook & Crook. It is Time for Democrats to Use the Constitution to Rebalance It.

There are many troubling aspects of how the current Supreme Court was fashioned.. the honesty and integrity of some of its members… and what ideals they actually hold foremost in importance.

Does this Supreme Court really represent ALL of “We the People?” Are its decisions in the best interests of “Domestic Tranquility” and “the General Welfare” as the Constitution mandates? Is this Court protecting the land, the people and the ideals that our nation is formally based upon? The answer to these questions is flatly, “No!”

Supreme Court decisions need not be popular among the majority of Americans to be wise and right. Many, if not most, of the landmark decisions that moved America toward that “more perfect union” were very unpopular at the time with a majority of Americans. The Court is supposed to defend the liberty, equality and justice for everyone, very much including the little guy, and the minority, often from bullying by the majority. But this Court is neither wise or right, or really, even American. It is dedicated to allowing a minority to bully the rest of the nation. This Supreme Court is the first to take away rights. And plans on doing a lot more of just that. This is assuredly one the worst Supreme Court lineups in American history. It is imperative that we examine everything about it closely, and ponder what can be done to stop its rampage.

FOUR of the nine Supreme Court justices were appointed by presidents who were booted from office in their next election (George H.W. Bush, Donald Trump).

TWO were appointed by a president who originally lost the popular vote, then lied us into two unnecessary military quagmires, crashed the economy, left office with historic unfavorable rating and is now regarded as one of the worst presidents in American history (George W. Bush).

THREE were appointed by a president who lost the popular vote twice, was impeached twice and is now in legal jeopardy for having fomented a treasonous coup against the United States (Donald Trump).

These facts do not disqualify any of the traditionally nominated and confirmed justices, but they do indicate that they were, and are, not well aligned with the political, economic and social sensibilities of a large majority of American citizens.

That is putting it mildly. But it’s actually far worse than these justices being selected by individuals duly elected but eventually rejected by the American people. Indeed, ALL of the conservative justices were hand-picked and foisted upon those soon-to-be rejected presidents by a shadowy, unelected cabal, the Federalist Society, an extremist rightwing “think tank” in Washington D.C., which holds a dark, authoritarian, ultra pro-corporate view of what this country should be that would shock most liberals and moderates, and even most conservatives would be alarmed by.

ALL SIX of the conservative justices are, or were, Catholic. One of the liberal justices is Catholic (Sotomayor). Sixty-seven percent of the Court is Catholic, while Catholics make up just 22 percent of the nation’s population. There have been just 15 Catholics on the Supreme Court in our nation’s 220+ year history; a third of these are there now (not even including the convert to Protestantism: Gorsuch). This shocking fundamentalist lean to the Supreme Court is totally out of sync with our nation’s emphatically secular orientation, its aversion to church-state coziness and even with its mainly Protestant religious heritage. Including the converted Gorsuch and newly appointed Ketanji Brown Jackson, there are two Protestants on the court, while Elena Kagan is Jewish. There is zero representation on the Supreme Court for the nearly 22 percent of Americans who are “unchurched,” spiritual-not-religious or agnostic/atheist… even though our most famous founding fathers were more aligned with this very group! The recent decisions by this Catholic-dominated Court regarding requiring public funds to religious schools (if such assistance is provided to any other type of private school… even though those schools probably pay taxes while religious schools do not), reallowing prayer upon public school grounds and now the outrageous overturning of Roe v Wade, which will Balkanize the United States and instantly transform American women and girls into properties of the state, all easily pierce the “separation of church and state” orientation that the founders believed paramount for democracy to work. Instead, this Court is giddy to force fundamentalist religious beliefs upon the rest of Americans. This dangerous drift, in itself, is unconstitutional.

ONE seat on the court was, by Constitutional law, President Obama’s to appoint, but was STOLEN by Republican Senate Majority Leader Mitch McConnell in a blatant, evil and wholly un-American gambit to preserve the conservative advantage on the Court. Following the death of conservative justice Antonin Scalia, Obama’s selection of Merrick Garland — a mild moderate (the “model neutral judge”) — would have tilted the Court perhaps a smidge to the Left (with Garland, ever the moderate, and Anthony Kennedy — actually appointed by Ronald Reagan — a frequent “swing” vote), opposed by four staunch conservatives. McConnell’s single reason for not allowing Garland, to even get a hearing was that it was too close to the next presidential election, which was more than nine months away. He argued strenuously if not convincingly that “the People” should decide which president would be granted the opportunity to select the new justice. Well, how magnanimous of him… having such affection for and confidence in “the People.” Yet, if the writers of the Constitution believed for an instant that such an outright theft by the Senate Majority Leader was the right and proper thing to do, it would damn well be in the Constitution. There is nothing in the Constitution that supports the concept of this theft from the rightful appointer of justices, the current president. Such an act had never before occurred in American history. Alas, the Constitution does not explicitly prohibit this toxic maneuver either (in yet another instance of the founding fathers not being totally clairvoyant enough to anticipate every imaginable diabolical scheme to subvert their intentions). McConnell got away — scot free — with never allowing an actual vote on Garland. He publicly boasted at the time, “One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’” A more partisan, unfair, and un-American sentence was never uttered by a leader of Congress.

Obama’s justice selection blocked by McConnell would be handed to Donald Trump upon his election in 2016, the first president ever to have a Supreme Court seat awaiting him as an inauguration gift. He selected conservative ideologue Neil Gorsuch, preserving a staunch conservative majority on the Court at 5–4.

Donald Trump, inarguably the worst president in American history (who else has tried to destroy American democracy?), would receive three opportunities to appoint Supreme Court justices in his four tumultuous years as president. Compare this with just two selections for Democrat Bill Clinton and two for Obama in their combined 16 years in office. George W. Bush only got two appointments in his eight years in office. Trump’s three choices boosted the conservative advantage on the court to an insurmountable 6–3, including the replacement of swing vote Kennedy with a fratboy hack in Brett Kavanaugh and, disgustingly, a Handmaiden’s Tale religious fundamentalist in Amy Coney Barrett replacing liberal icon Ruth Bader Ginsburg.

Ginsburg died less than a month before the 2020 election. Mitch McConnell, still Senate Majority Leader, felt no compunction whatsoever in assassinating his previously held conviction when Obama was president that, so close to an election, “the People” should decide who would name the next justice. The historic scenario screamed for philosophical, political and moral consistency from the highest leaders of “We the People” in the land. But McConnell chose to conserve advantage, privilege and power. This time, with a Republican in the White House, his “moral” compass did a back-flip. Fuck “the People!” (see, that’s real conservatism… whatever works for them at the time is their true North Star). He rammed through Trump’s nomination of Barrett with historic hastiness. The vote to confirm Barrett occurred eight days before the election! And so Mitch McConnell became a poster child for conservative disingenuousness, deceit and betrayal of any moral, ethical, virtuous integrity. Par for the course for conservatism.

ALL of the conservative justices when being interviewed as nominees for the Court by senators LIED — under oath — about their intentions regarding Roe v. Wade. All pointedly assured Democratic senators that Roe was “settled law” and “the law of the land,” and “precedent” not to be worried about in the least. The few Republican senators who were vaguely interested in protecting Roe v. Wade (hello, Susan Collins of Maine, who also thought Trump had “learned his lesson” after the first impeachment) swallowed down their intentional misinformation. In actuality, each and every one of these nominees held not-so-secret ambitions to completely do away with the law. Indeed, these lying toads were chosen specifically for this task (and protecting any and all corporate interests) by the Federalist Society, devoted entirely to thwarting American democracy and the rights of most Americans. And now they are making exactly that happen. Thanks to McConnell’s stolen seat, the weird, dark anomaly of Trump’s electoral college victory in 2016, the careful manipulation to convince Anthony Kennedy to retire when America needed him to stay, at all costs,, and the exceedingly untimely death of Ginsberg, it all fell together faster than the conservative elite thought possible. A tiny, tiny elite of conservatives put this show together, but now all Americans will feel the scorn, the pain, the despair, one way or another, of conservatism unchained.

And then there is Clarence Thomas who was appointed to the Supreme Court by George H.W. Bush, no doubt that president’s greatest insult and injury to this nation. Clarence Thomas has served on the Court for 31 years… and hasn’t sided with democracy, the environment, or compassion yet. At times he seems like a white supremacist in blackface, a terrorist in black sheep’s clothing. He has shafted his own race so often in his legal opinions that the Black community has stopped counting. Thomas really seems bent on sending them back to the 1950s, or even earlier. According to his train of thought, his own interracial marriage should be illegal. His white wife, Ginni Thomas, is an extremist rightwing gadfly who took an active role to aid Donald Trump’s spreading of lies about the “Big Steal” and attempt to overthrow the government. How much of her radical ideology and willingness to subvert the will of “We the People” does old Clare share? Probably all of it. Now that’s a guy who should not be on any court, much less the Supreme.

If the Dobbs case, overturning Roe, and the Kennedy case, allowing someone to co-opt a public space and conduct a prayer meeting, both served the primacy in law of the religious right, the far more ominous ruling that came days later in West Virginia vs the EPA showed this Supreme Court’s real daddy… the corporatocracy. With the possible exception of Ms. 17th Century Puritan, Amy Coney Barrett, the conservatives appointed to this Court by the Federalist Society are extreme corporatists through and through. True, they are selective corporatists. They favor the smarmiest and dirtiest of business, finance and industry… corporate raiders, banking pirates, creators of chemical poisons, Big Ag, Big Pharma, Big Insurance, Mighty Mining, the unhelpful and unhealthful American healthcare vultures and the fossil fuel dinosaurs. They would side with a polluting shit factory before they would their own grandmas. The West Virginia ruling castrated the Environmental Protection Agency. Think about that. Protecting the environment. The air we breathe. The water we drink. The biosphere. The climate. Some powerful entities in America have never thought protecting any of that was a good idea, not if cost them one red cent. Corporate toadies, like McConnell are applauding the ruling. Dissenting justice Elena Kagan said this, “The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”

And so, again, this Court is taking away rights. In this case the right of the public — the friggin’ entire public — to be safe from business and industrial excess, poisoning, pollution and contribution to the coming catastrophe of Global Warming. All those killer heatwaves, epic wildfires, tornado swarms, historic floods, decades-long droughts, increasingly nasty hurricanes and other storms, freaky winter snow and ice events, tropical diseases moving northward, rising sea levels… the United State Supreme Court don’t give a damn, and has just given the green light to American corporations — bereft of any kind of morality — to keep on polluting, hey! ramp it up if you want! Mother Nature is going to get angrier and angrier. When the fire or flood or tornado or hurricane or blizzard or running out of water wipes out your job, your house, your town, your life… if you voted Republican, well, blame yourself.

By any moral, ethical or democratic measure, the conservative super majority on the United States Supreme Court is a mockery. An overwhelming majority of American citizens already disapprove of this Court on a variety of issues… yet it is just getting started demolishing “Domestic Tranquility” and the “General Welfare” that Constitution mandates promoting and protecting. Yet this conservative court — including the three Trump hacks — could be around for GENERATIONS to come!

This is an American Horror movie barely past the director’s name in the opening credits. It is more ugly, toxic residue from the Trump presidency, added to his blueprint left behind for future aspiring totalitarians to transform America into a Banana Republic. At least he did us the favor of ripping down the myth that American conservatives believe in true American ideals — liberty, equality and justice for all — at all. All they believe in is their own power. Now, if only more Americans would take a good, hard, long look at that very reality.

Sane America — the portion that believes in American values — has a choice. Either live with the Court’s (in perfect sync with horrid red state legislatures) spewing of poison, and watch the nation we have known for the past 50, 100, hell maybe 220, butchered by conservative vandals… or do something about it.

The Constitution has remedies for just such a clear and present danger.

First, the Constitution sets no number for the Supreme Court. Congress can proclaim whatever number it deems, at any time. All perfectly legal and anticipated by the writers of the Constitution. Originally, there were six Supreme Court justices nominated by George Washington and approved by the Senate. Then the lame duck Federalists reduced it to just five so Thomas Jefferson’s Democrats would not have a majority. That change was quickly undone by the incoming Congress, and then a few years later Jefferson urged Congress to bump it back up to seven so that he had a larger majority. Then Andy Jackson’s Democrats bumped it up to nine, for the first time, so he would have a majority on his side. At the start of the Civil War, Republicans ratcheted the number up to 10 members to ensure their advantage, then back to nine when they were decidedly in control, but when a Democrat took over for Lincoln, they immediately reversed course and reduced the number from nine to seven. That number has been the norm since 1869. But not for lack of trying. In 1937, Franklin Roosevelt, incensed by conservative justices throttling his New Deal plans — you know, to actually help people — threatened to expand the Court to as many as 15. Conservatives, both Republican and Democrat, squelched that idea. Now the possibility is back… and increasingly sounding like not just a good idea, but the friggin’ salvation of the nation. It would only take a simple majority in the House of Representatives and 60 votes in the Senate to agree to expand the Supreme Court to 11 or 13, allowing a Democratic president to add two liberal justices, leaving John Roberts as a shaky swing vote, or four liberals to defang entirely this conservative menace.

But there’s another way, as well. Justices can be impeached. There may be a case for impeachment of at least three, if not five, of the conservative justices based solely on the abuse of the separation of church and state tradition of the United States, and the forcing upon the American people and nation fundamentalist religious beliefs. How about injurious rulings to the nation that threaten the hard-won rights of huge swaths of citizens, tarnish the country’s standing in the global community, promote division, strife and violence, and demolish “Domestic Tranquility” and the “General Welfare.” But an impeachment attempt need not even include any rulings content. If lying under oath, to Congress no less, about a colossally important subject isn’t a “high crime and misdemeanor,” I’m not sure what is. Do the conservative justices, in their black robes and white collars, need to paint their faces and wear a buffalo head while storming the Capitol with the intent to hang Mike Pence to show any clearer their disdain for the American people as a whole, and American ideals, including democracy? Or might Congress just extrapolate from the conservative Court’s horrendous rulings of late (going back to Citizens United — Corporations are People — in 2010, and gutting the Voting Act in 2013), and decide, quite rightly, that this trend decidedly downward is intolerable.

There has only been one Supreme Court justice impeached, in 1804, Samuel Chase, one of George Washington’s appointments, but he was acquitted by the Senate (rescued like all three impeached presidents have been). But one Supreme Court justice, Abe Fortas in 1969, resigned rather than face impeachment for financial improprieties. And 14 non-Supreme Court federal judges have been impeached in American history, most recently in 2010, on charges a piddly as drunkenness. Most were implicated in bribe-taking. Eight were ousted and three others chose the Fortas route or resigning before they could be so shamed. So not only is it possible that a Supreme Court justice can be impeached, ousted and replaced… it’s high time one… or three… or four… were. If one of George Washington’s justices could be impeached, it’s damn clear that one or more of Trump’s hacks who egregiously lied their way on to the Court in the first place could, and should, be.

Neither of these options will be easy (Trump’s buddies Vladimir Putin, Kim Jong Un and Prince Mohammed bin Salman would surely have more “timely” recommendations). Conservatives will block, delay, deny, derail, whine, cry and at last probably turn to violence. Either option will require controlling Congress, including a two-thirds majority in the Senate. A steep challenge to be sure, but doable if enough voters are convinced that an America of progress and compassion and any semblance of equality is in grave danger from these quacks of jurisprudence.

The consequences of not doing anything are dire. The contemporary conservative Court is in the process of dismantling every stitch of progress over the past 50 years, at least. The reasoning behind the overturning of Roe v. Wade should send a shiver down the spine of any true American: Only if the Constitution makes specific mention of a presumed — or even a previously granted — right, and/or it is “deeply rooted in [our] history and tradition” does this conservative Supreme Court have any interest in conserving it. Well, that merely includes almost ALL of the rights and protections granted since the Constitution was written 230-something years ago. (How “Citizens United,” in which conservative justices — including current justices John Roberts and Clarence Thomas and Samuel Alito — proclaimed that “corporations are people” — an idea that would have the founding fathers rioting in opposition — fits into this narrowest of “originalist” interpretations is an utter mystery… there, in a nutshell, is conservative “philosophy” — plain and simply, whatever advantages them).

Cited by Alito as an authority on such matters of ancient morality in the recent abortion ruling was Matthew Hale, an English judge in the 1600s who was vehemently opposed to the practice. He also defended marital rape, ordered two “witches” executed and thought the death penalty was appropriate for children as young as 14.

THAT’s how detached from modern sense and sensibilities this conservative Court has become. ONLY the rights granted by the close of the 18th Century shall be upheld, but we conservatives shall be unfettered in our right to extend absurdly conceived rights to our corporate friends at any time. THIS is the surreal, draconian, ignorant, cruel Dark Ages, fundamentalist-corporate conservatives are intent on dragging the United States of America back to. It’s hard to know if they will take us backward 50 or 200 years or to Hale’s 17th Century, but their effort will rip asunder the United States of America. Once known and respected for its lofty ideals, science, quality, efficiency and compassion, the good old USA will devolve into that state of nations that Donald Trump inelegantly labeled “shitholes.”

We can watch it happen. Or we can mobilize an all-out Democratic effort to rid ourselves of this conservative plague. It won’t happen overnight. It may take 50 years, about the same amount of time conservatives plotted and pandered and lied to bring us to this moment of crisis. For decades conservatives have been braying that liberals are out to destroy their “way of life.” That is one of the few things they are right about. That’s because their “way of life” harms, in one way or another, everyone else. With this Supreme Court, suddenly the table is turned. All of the progress that liberals won for ALL Americans (even conservatives, though they are too ignorant and selfish to comprehend) is now at risk. This Supreme Court will destroy that America.

If you are not rich. If you are a woman. If you are an employee or small business owner. If you are brown or black skinned. If you are not a fundamental Christian. If you are disabled. If you are LGBTQ. If you are non-conformist. If you don’t speak English. If you care about the environment, clean air and clean water and a place for wild animals in the world. If you care about Global Warming. If you care about a fair, sustainable economy. If you care about food safety and consumer protections. If you care about the homeless. If you believe in cooperation and good will between nations. If you believe in science and art and literature. If you believe that experts know best about their particular subject. If you give a damn about America’s founding principles, be warned: this Supreme Court has no interest in protecting you or your family or your interests.

Look at what they have just done to women (and they aren’t finished with you, ladies). Look what they are now doing to transgender people. Look at how they smell blood and gay marriage is back on the chopping block. Look at how they treat Muslims and Mexicans and immigrants. Look how they steadfastly refuse to raise the minimum wage. Look at how they look greedily at taking over Social Security. Look how they attacked the Capitol to kill democracy!

These are conservatives. The only thing they conserve is their own advantage, privilege and power. To them, you are a pawn. Prepare to surrender your autonomy and full personhood to their “authority” and “superiority.” Or start electing Democrats to save you and the nation.



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