Here's why support for Supreme Court falls

 

Gordon L. Weil

In dissenting from the Supreme Court’s procedural order suspending lower court rulings on an anti-abortion drug, Justice Samuel Alito issued an historic tirade.

Alito blasted the Biden Administration and fellow justices and revealed both the ultimate outcome of the case and extreme judicial  partisanship.

The case began when a U.S. District Court judge in Texas overturned the Food and Drug Administration’s long-standing  approval of mifepristone, an abortion drug.  Then, a U.S. Circuit Court partially overruled the lower court judge, but cut the FDA authorized period for its use until it finally decides  the case. 

The Supreme Court temporarily suspended both rulings, allowing continued use of the drug as approved by the FDA.  Alito wanted to confirm the Circuit Court position.  Justice Clarence Thomas opposed the Supreme Court order without explaining his reasons.

Alito also claimed that limiting the drug’s use pending a final decision would not cause anybody harm.  His judgment seemingly ignored the sudden inability of some women to use a legal medication over what might be a period of many months.  It is difficult to believe he did not understand that.

In his dissent, Alito forecast that the Supreme Court would later support the FDA.  He interpreted the suspension of the lower court rulings as a message that the majority would reject any lower court attempt to overrule the FDA’s experts when the case came back to the Supreme Court.  Having participated in the Court’s private discussions, he was most likely right. 

Alito vented his frustration.  He attacked the Biden Administration, saying “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order....”  When had the president disobeyed courts orders?  What made such doubts “legitimate” when they have never been raised in court?  Did he pick it up “doubts” from media speculation?

Supreme Court justices are expected to display a “judicial temperament.”  That means they should appear calm and thoughtful, giving people confidence in their hugely important decisions.  Alito blew it. 

The angry jurist also charged that the suspension amounts to a major decision being made by a procedural order.  This would be the so-called “shadow docket” that he had previously supported as part of a Court majority.  He attacked two justices who had earlier opposed it but who now used it, he claimed  Having lost, why shouldn’t his two colleagues accept his position?

But the Court was only issuing a procedural order doing nothing more than leave the FDA ruling in place until it finally decided. It changed nothing.  Alito believed the lone district judge’s unscientific decision was worthy of being observed, at least in part, until the case was finally resolved. That would have been the real “shadow docket.”

He also revealed his partisan bias.  Earlier, in opposing liberal lower court decisions, he had forcefully urged judicial respect for FDA expertise.  He had scorned a single District Court judge for issuing a nationwide order overruling the agency.  Now, when it suited him to second guess the FDA, he reversed course and supported the conservative District Court’s national ruling.

Alito’s dissent highlighted several reasons why public confidence in the federal courts has reached a new low point. 

The Court has allowed single District Court judges, like the conservative jurist sitting alone in Amarillo, Texas, who had made the mifepristone decision, to issue orders covering the entire country.  This power is not expressly authorized by law and is relatively new.  And the anti-abortion plaintiffs were able to cherry pick his court and be sure of getting a favorable decision.

Congress does not screen District Court nominees carefully enough and apparently  relies on trusting that bad or political judges will be overruled by higher courts.  Sen. Susan Collins was the only Republican senator to vote against the questionable Texas judge, who will hold office for life unless removed by Congress.

The Chief Justice has failed to exercise appropriate leadership.  Roberts was surely aware of Alito’s unusual attack on the executive branch before it was published.  He neither induced the justice to drop it nor expressed concern about it. 

Roberts seemed to ignore Thomas having received undisclosed annual gifts from a wealthy and influential conservative. The Chief Justice refused to testify at a Senate committee looking at the Court’s ethics following the Thomas disclosures.  Previously, Roberts had allowed only an in-house investigation by inexperienced staff of the leak of Alito’s ruling overturning Roe v. Wade.

Thomas and Alito are right-wing radicals.  Alito regularly flaunts his partisanship.  Thomas masks his bias in a dubious philosophy.  Roberts asserts a degree of judicial independence that ignores the checks and balances that supposedly are central to the government.

If presidents and senators insist on federal judges as political partisans with little ethical accountability rather than as independent and responsible jurists, the Supreme Court will continue to fall in public esteem.

Supreme Court ignores ‘checks and balances’; Congress should rein it in

Gordon L. Weil

The Supreme Court rules the federal government.

When it comes to judges, the checks and balances that are supposed to restrain each of the three branches of the government don’t work.   The Supreme Court composed of nine, unelected justices holding their positions for life have assumed virtually unlimited power.

When they seek Senate confirmation, judicial nominees declare they have no personal agenda but pledge to simply apply the law.  They give the impression that the law is clear and all they must do is measure each case against its standards.  They will set aside their personal leanings for the cold analysis they must make.

Although everybody knows their political philosophy and that they hold views consistent with those of the president who appointed them, they refuse to answer questions about how they see issues on the grounds that revealing their beliefs might undermine their proclaimed objectivity if they get a case to decide. That lets them get away with what everybody knows is pure fiction.

Just ask Sen. Susan Collins who wanted to learn if nominee Brett Kavanaugh accepted the Court’s precedent when it decided abortion was a constitutional right.  Of course, he wouldn’t simply tell her, so she was left to try to decode his veiled message.  She concluded he respected the precedent.  It turned out he didn’t.

Shouldn’t Congress cut out the sham and insist on real answers as a condition of confirmation?

How about Chief Justice John Roberts when he ruled for the Court that African-Americans no longer needed federal assurance of their voting rights and that states could be counted on to treat them fairly. True, he recognized that the section of the Voting Rights Act he was nullifying was a major reason they had gained voting access.  But enough was enough.

Within minutes of that decision, four states that had been under federal supervision began making it more difficult for Blacks to vote.  And that process has continued ever since. His Court majority was composed of Republican appointees; the states limiting access for African-Americans are under Republican control.

The arrogance inherent in an unchecked judiciary goes on. A lone district court judge in Amarillo, Texas decided that the Food and Drug Administration erred 22 years ago in approving an abortion drug.  He substituted his non-expert judgment for the work of many scientists over many years.  Using a process allowed by the highest court, he applied his ruling to the entire country.  It was appealed.

What’s the reasonable length of a congressional recess?  It might seem that Congress could decide that.  Instead, the Court has ruled it must be at least ten days to qualify as the recess period mentioned in the Constitution.

These decisions are obviously not simply a matter of determining what the law is, despite what the nominees say they will do.  This is legislation.

The justices rather than the Constitution have become “the supreme law of the land.”  They act to make sure that the popularly elected branches, Congress and the president, don’t get carried away exercising the people’s will.

The Framers of the Constitution may have been creating an innovative new democracy, but they didn’t fully trust average people.  The Court, ignoring over 230 years of change, would keep it that way.  But the elected branches and their voters have evolved, and the Court should concede the development of democracy and back off of its paternalism.

The justices need to be accountable.  If the chair of the Federal Reserve can be required to testify before Congress about the Fed’s actions and plans, the Chief Justice should have to explain to elected officials the decisions made by the Court.  The heads of executive departments testify and even the president shows up once a year.

There’s also the matter of personal accountability.  Every member of Congress faces ethics review and financial reporting.  They and the presidents face voters and the media.  Representatives and senators are censured and expelled.  Justices do none of that.

Supreme Court justices make financial reports, but Justice Clarence Thomas has failed repeatedly to do that.  No one can make him report accurately or completely. One justice resigned for taking gifts far less significant than those Thomas accepted. 

The justices have made themselves into untouchable demigods, and Congress has meekly agreed.

In 1803, the Court made itself the last word in the federal government.  An independent judiciary is an essential element of the three-part system that can only work if each branch observes the checks and balances.  Right now, the Court controls many checks and operates without balances.

The Constitution gives Congress the power to make “exceptions” to the Supreme Court’s powers and to set “regulations” for it.  It’s time for Congress to ensure that the Court operates within the constitutional system, but does not own it. 

One election reveals keys to Democratic recovery

 

Gordon L. Weil

Things are not going well for the Democrats.

GOP states unravel their policies, from abortion to education. Their voters are blocked. Courts legislate away their core policies. Republicans exploit apparent deadlock to threaten or even reverse a system that had mistakenly been thought to be permanent. The Democrats are on their back foot, as the saying goes.

A single recent election – for a seat on the Wisconsin Supreme Court – may have given them the formula for a comeback.

Until the Civil War, American political life reflected an almost simple faith in individual freedom, especially for the dominant group in the nation. It allowed only a limited role for government. Today, this is the philosophy of Republicans who control states from Florida to Wisconsin.

The Great Depression and World War II produced an alternative, offering a larger government to serve common interests as well as protecting individual rights. The public interest should no longer be dominated by a single group – white men. As Democrats, they once governed from Florida to Wisconsin.

American politics settled into a contest between conservative Republicans and liberal Democrats. The Democrats and their policies from Social Security to civil rights gained broad popular support.

Their gains sent a signal to Republicans that holding onto power depended on uniting against a growing government. Concerned about becoming a permanent minority, thanks in part to the wide availability of government benefits, they reacted strongly. In their war for political survival and renewed control, virtually anything goes.

Their conservative platform would restore much of the pre-Civil War system. Facing a growing non-white, non-male electorate, they try to change the rules to suppress voting by these groups. Financed by super-wealthy, anti-regulation economic conservatives, they seek to attract social conservatives, who oppose increased government tolerance of diversity.

The conservatives have achieved levels of discipline and finance allowing them to become the apparent political equal of the liberals. While that balance is said to cause stalemate, it is enough to allow the conservatives the ability to block change and repeal past measures. They work to make their gains permanent.

In pursuing their agenda, the Democratic Party’s liberals have seemingly believed that virtue is its own reward. By helping more people, they have assumed they will win elections. But many people are left to understand for themselves the value they derive from government action. They may face Republican efforts to suppress their participation.

All of this happened in recent years under a Republican governor and Republican legislature in Wisconsin. They rolled back progressive legislation and redistricted the state. Now, it is estimated that under the state’s extreme gerrymandering, the Democrats would have to gain the support of about 60 percent of the voters to regain a legislative majority.

A Republican member of the state elections board boasted that the number of Milwaukee voters in 2022 had been sharply cut “with the major reduction happening in the overwhelming Black and Hispanic areas.” That reduced turnout was greater than the narrow statewide reelection margin of a GOP U.S. Senator over a Black Democrat.

Efforts by Democrats to draw state legislative districts to prevent gerrymandering on the basis of race prevailed in the state Supreme Court, when a conservative judge broke ranks. But the U.S. Supreme Court sided with the GOP, reflecting its reluctance to reject any gerrymandering unless there is a formally declared intent to discriminate.

The conservatives are ready to exploit fully any advantage they gain and see no benefit in compromise. Liberals have a weak response. But the recent election for the Wisconsin Supreme Court seat reflects a better understanding of the challenges and their possible solutions. It could be the key to Democratic recovery.

This was the most expensive state judicial election ever in the U.S. Democrats are now able to mobilize money like the GOP. In American politics, money matters and more money matters more.

Backed by the Democrats, the judicial candidate was a woman, yielding an all-female liberal court majority. Instead of playing coy like most judicial candidates, she clearly announced her positions on key issues. She was as forthright on abortion rights as GOP-backed candidates have been.

Democrats stressed the importance of this victory, given the possibility of voting challenges after the 2024 presidential election. It was a statewide race, where a Democratic majority could produce a positive result that could not yet be achieved in gerrymandered legislative races. They got out their vote, and she received a stunning 55.5 percent.

The Democrats need to start winning by big margins. All across the country, they can learn from Wisconsin. Get off the defensive. Find women candidates. Run statewide. Focus on a few key issues, even if it’s risky, and hammer them home. Raise money. No matter the obstacles, get all your voters to the polls.

Stormy case deserves thoughtful review, not hype

 

Gordon L. Weil

Stormy Daniels never thought she’d be so famous.

Now, her alleged dalliance with Donald, the man who keeps reminding you he was President 45, has become the stuff of American history.

Trump nails down his place in history as the first former president to face a criminal indictment.  The indictment has unleashed the great American punditry and its flash wisdom.

Trump asserts that the charges are political.  His opponents drone on that “nobody is above the law.” He’s right and they’re wrong.  His goal in the case is to prove both points.

He’s right, because every important court case since life began under the Constitution has been political.  A lone federal judge in Texas, a Trump appointee whose courtroom was handpicked by the plaintiffs, has just banned parts of the Affordable Care Act nationally. People complaining that the Daniels case is political should check this out.

Trump promised to load the Supreme Court with justices who were openly opposed to abortion rights, and he did.  They killed Roe v. Wade.  That wasn’t a political decision?

Trump claims the true political purpose of the charges is to undermine his campaign for the presidency in 2024.  He may have hoped his early announcement would discourage any charges, leaving him able to claim they were politically motivated.  It could help him among Republicans, and it is a first-class money machine.

He is the master of using delay and similar tactics to forestall cases brought against him.  It seems that the New York County District Attorney thought he ought to act and try to avoid becoming entangled in delaying tactics after he decided he had enough evidence.

Manhattan DA Alvin Bragg also enjoys the kind of political isolation many other prosecutors, possibly one in Georgia, would lack.  He was overwhelmingly elected by voters who are obviously not big Trump backers. He is part of the New York State judicial system and the entire state government is politically impervious to Trump or Republican pressure.

He should also be safe from federal interference.  Under the Constitution, created by the states for the federal government, they retained jurisdiction over crimes committed entirely within their borders.  The wild attempt by House Republicans to investigate Bragg’s moves should go nowhere and violates the Constitution.  It’s political hype and will make noise.

The public may never know if Bragg consulted with other prosecutors dealing with the presidential papers case or the January 6 insurrection or his attempt in Georgia to have some voters switched to him.  But Bragg, in his position of relative safety, may have aided them by breaking ground in bringing charges and taking the heat for hauling Trump into court.

Give Bragg some credit. He is black and had to know that “the Donald” would skate around the edges of racism trying to discredit him. 

Because New York has acted, it is easier to foresee far more serious charges will bring Trump to trial.  In Georgia, a DA appears to be preparing charges that Trump illegally meddled in the vote counting process with the intention of finding enough ballots to overturn Joe Biden’s win there.

The federal Department of Justice is looking at his having kept presidential documents in open violation of the law and having caused the January 6, 2021, Capitol insurrection by his backers, who hoped to halt the presidential vote count.

But there is also good reason to question Bragg’s decision.  The first indictment of a former president on what is a comparatively minor matter may have weakened respect for the presidency itself. While Trump has already stripped the presidency of respect by using it for personal gain and scorning other countries, these charges may bring matters down to his level.

The charges would not have been grounds for impeachment and would probably not normally yield significant punishment.   The decision will be even more questionable if the proceedings look like a kangaroo court or the prosecution outright loses. The Trump campaign would probably be overjoyed and benefit from the outing.

The other risk from this prosecution is that, in this deeply divided country, it will pave the way for later prosecutors to bring legal actions, well founded or not, against future presidents.  Conviction after impeachment has become impossible, but this could be similar and much more easily used against an opponent.

To be sure, the threat of such cases could make future candidates and presidents more careful in how they conduct themselves to avoid serious embarrassment or worse. No longer can the aura of political celebrity serve as a guarantee against the consequences of regal behavior or illegal action.

In an age when social media passes as news reporting and pundits speculate irresponsibly, this is also a test to see if people can withhold their judgment until they have the facts.