2023 rulings: The worst Supreme Court Ever
There is nothing happenstance about the mind-boggling series of Supreme Court decisions that came down in the past few weeks. This Supreme Court was designed and engineered to be the most callous, most reactionary, most activist, and most corrupt court ever.
To understand this Court, you have to understand how it used to work. There were always cases where political cronies of the president (Abe Fortas, Jimmie Byrne, Byron “Whizzer” White) and men with a political background (Hugo Black, William Rehnquist, Earl Warren, many others) got appointed to the Supreme Court. But the general process hinged around appointing distinguished jurists who were thought to share the general political philosophy of the president. The key player was the American Bar Association committee that reviewed judicial appointments. A “highly qualified” rating was practically a necessity. And most appointees were well into or nearing the end of their careers so that they were likely to serve 20 years or fewer.
There was one problem with this system: renegade Republican appointees. David Souter and John Paul Stevens, both Republican appointees, became among the most liberal justices and Sandra Day O’Connor became a moderate. Worst traitor of all, of course, was Earl Warren, the prime mover behind the revolutionary decisions that the current court is destroying. Even the hated Roe v. Wade decision was authored by Nixon appointee Henry Blackmun.
The Republicans resolved “never again” and came up with a system to create 50 years of partisan Republican control of the judiciary. Key elements: obstruct Democratic appointees, smooth the way for Republican, and develop a system of grooming and identifying partisan talent that can be vetted for Judiciary positions. The thought of nominating distinguished jurists went out the window, replaced by partisan streetfighters with dependable views. They appointed some judges with no TRIAL experience at all. But they had survived the shark-infested waters of Young Republican organizations. And they knew what was needed to get ahead: a single-minded devotion to erasing all traces of the Great Society and New Deal and a willingness to tell any outrageous lie about “respect for precedent” to get confirmed.
For example, Gorsuch said,
“When I put on the robe, I’m also reminded that under our Constitution it’s for this body — the people’s representatives — to make new laws, for the executive to make sure those laws are faithfully executed, and for neutral and independent judges to apply the law in the people’s disputes,”
“If judges were just secret legislators, declaring not what the law is but they would like it to be, the very idea of government by the people and for the people would be at risk,” Gorsuch said. "And those who came before the court would live in fear, never sure exactly what the law requires of it except for the judge’s will.”
In answer to a direct question about Roe, Kavanagh said,
To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it. In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe.
That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as Glucksberg and other cases. So that precedent on precedent is quite important as you think about stare decisis in this context.
Trump’s third nominee, Amy Coney-Barrett, went the furthest to avoid saying Roe was precedent, but even she said:
“I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors. And I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.”
And maybe most important: increasingly the Republicans went for young nominees who, once confirmed, might occupy a seat on the bench for 40 years. Central to this process was the Federalist Society, which took on the responsibility of screening, grooming, and vetting the judges and justices of the future. Once they had navigated these treacherous waters, there was no need to ask the people on the Federalist Society’s short list any uncomfortable questions: everyone knew what was expected and only the most politically reliable would make the list.
The Democrats cooperated eagerly with the Republicans in allowing this to happen. The three Trump appointees would have been Clinton appointees and we would now be looking at a 6-3 liberal majority except for several million “never Hillary” chumps who elected Trump by sitting it out. Many of whom still insist they’d do the same thing, even after seeing the consequences.
Yes, McConnell’s refusal to allow a hearing for Merrick Garland “stole” one judicial nomination, but if the Bernie Bro’s had voted for Hillary, that still would have been a Democratic nomination.
It isn’t just the ideology that makes this the worst court ever. The court’s open contempt for precedent and for the legislature are what make this Court uniquely dangerous.
The recent LGBTQ web page case is a horrible decision from a variety of viewpoints. First is its casual rejection of long-settled principles from the 1964 Civil Rights Act and its opening of the door to further acts of discrimination. But even worse is the context of the case. No Supreme Court before this radical group of crusading reactionaries would have touched this case. Quite literally, there wasn’t anything for the Court to consider. The designer hadn’t even been asked to design such a web site, let alone suffered any consequences for refusing to do it. Supreme Courts used to do everything possible (find lack of standing, or that there wasn’t really a judicial matter to consider, or make a finding on narrower grounds). Not this group of crusading reactionaries: they have a chip on their shoulder and no grounds to remove constitutional rights are too feeble.