It isn’t in a vacuum that five Supreme Court Judges have alluded to the perception and the reality that their Court has become a political entity - this, in a political environment where the Constitution has all but entrenched the minority’s ability to cause deadlock. This question has become forefront in a country that is experiencing a never ending pandemic in which close on a million of its citizens have perished.
Nine Supreme Court Judges, who have received no electoral mandate nor specialist knowledge in arenas where they adjudicate, are the final arbiters of how America is run. The American Constitution and its Amendments are purportedly the instruments as to how to carry out the Founders Mission, “That all men were created equal” and that it is “We the people” that decide. The question is how does this eighteenth century document stand up in 2022 and whether the Court's rulings are in sync with that Mission?
THE SUPREME COURT, AMERICA’S MISSION AND THE CONSTITUTION.
The Supreme Court’s current approval ratings are at its lowest ebb ever hovering at a forty percent, down from a once high of eighty - eight percent. The fact that the Constitution does not jive with the times should surprise no one. It was written at a time when there were no AK 47s, no science on foetal viability and no billionaires financing elections and appointments including those of Supreme Court Judges. Nor were there medications or vaccines to abort a public health crisis.
The six Conservative Judges sitting on today’s court consider themselves, to a lesser or greater extent, strict Constitutionalists. The latter believe that the Constitution should be interpreted in the mindset and intent of those who wrote it in the eighteenth century. The Conservative Justices are all creatures of the Federalist Society whose credo is just that. The Federalist Society has financed conservative judges campaigns, nurtured and promoted them and offered their names up to the Republican politicians for appointment.
The Constitution was based on the writings of the Enlightenment philosophers and created the implicit contract that citizens would give up certain of their freedoms to elected officials in exchange for their safety and equitable management of society’s institutions and their rights. This objective was to be carried out within the framework of the mission statement as enunciated by Jefferson in the Declaration of Independence. The central irony for the Constitutionalist Supreme Court Judges was that Jefferson never believed that the Constitution as written could apply to future generations.
So before even beginning to look at the current threat to democracy that exists in the country it would be instructive to learn how Jefferson viewed the durability of the Constitution and the role the Supreme Court might play in the governance of society. As to the durability Jefferson shared his thoughts with James Madison his great friend, a future President and the Founder, who more than anyone else wrote the Constitution. (Jefferson is the selfsame philosopher politician who was Vice President Pence’s inspiration not to execute an illegal coup and throw over the 2020 democratically government)
Jefferson to Madison: “…. between society and society and generation and generation there is no mutual obligation…the Earth belongs to the living generation…Every Constitution and every law naturally expires after nineteen years. If it be enforced any longer then it is an act of force not of right…”
So Jefferson would appear to disabuse Justice Thomas’s interpretation, for example, that he had in mind and intent that the Second Amendment would enshrine the right for citizens to roam the streets with increasingly sophisticated weaponry such as AK47’s and that abortion was illegal because its right had not been written into the Constitution. Jefferson specifically stated that the Constitution should be interpreted by future generations and even abandoned.
If the Constitution had not evolved neither Justice Amy Barrett nor Justice Thomas would be around to uphold their weird legal and philosophical edicts and force them on a long suffering public. Nor could have Jefferson et al imagined that the Court would take over the role of bodies of specialists whether they be medical, or any other. He might also have hoped for consistency at least in their rulings. But first and foremost he would have expected the Court to act in terms of the time they were operating in.
WHAT EXACTLY DID THE CONSTITUTION SAY ABOUT THE SUPREME COURT AND WHERE ARE WE NOW?
So what did the Constitution say about the Supreme Court whom the Federalists swear blind are the arbiters of the way society should function? The simple answer is “Not Much”. It is all covered in Article iii Section I: “ The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may form from time to time ordain and establish. Although the Constitution establishes the Supreme Court, it permits Congress how to organize it. Little did the Founders guess that it would be the Supreme Court that in the year 2022 organizes the Congress and every thing else!
The Constitution elaborated very few powers of the Supreme Court. It was left to Congress and the Court itself. It is fair to say the latter has not been shy to become the final arbiters of everything. In effect they had British law as precedent but the Court evolved literally into a powerful third branch of Government. Nowhere in the Western world has the Judicial system taken on such a dramatic central, powerful and political role.
Nothing however is written in stone. For example the number of Judges has fluctuated over the centuries, Nothing is sacred about the body some of whose conservative judges have been ordained by the Federalist Society with millions and millions of dark money for campaigns to get them elected. A simple majority of one vote by a determined political party could increase their number to thirteen, for example.
So onto a few examples of the far reaching rulings the life long arbiters of the way society is run that the Supreme Court has made in the past decade.
VACCINE MANDATES, EXPERT EVIDENCE AND THE ALL KNOWING SUPREME COURT
One of the points that Chief Justice Roberts differs from his colleagues is that he aspires to just chip away at long standing societal norms rather than just axe them in one fell swoop. What the Court decided in relation to vaccine mandates serves to illustrate this point. The Court believes that they rather than expert bodies created by Congress should have the final say on Public Health. OSHA, (Occupational Safety and Health Administration) and the CDC, (Centers for Disease Control and Prevention) are the Congress sanctioned expert bodies to decide inter alia how workers should be kept safe. In other countries these bodies are also made up of the experts in their field and are afforded “quasi judicial” status. Their rulings can only be judicially overturned if the decisions they came too could not be those of reasonable men. Put another way - even if those sitting on the Courts disagreed with their opinions they could not overturn them if they were “reasonable”. The current Supreme Court shows no such humility or deference to knowledge and science that emanate from these Congress sanctioned specialist bodies.
Currently close on a million Americans have died in a pandemic, and hospitalizations are at their highest since the start of this plague. While the current variant of the offending Covid virus is not nearly as virulent as others it is devastatingly infective. Expert opinion was that the unvaccinated especially those with active Covid were putting even those vaccinated at risk especially the elderly and medically compromised. OSHA estimated that six thousand deaths and two hundred and fifty thousand hospital admissions could be avoided if the Government vaccination mandate that companies with over a hundred workers would execute. Those workers who refused for one or other reason would have weekly testing.
The learned majority of Conservative Judges were not much interested in these statistics and warnings and the fact that the knowledge was gleaned from expert bodies sanctioned by Congress and acted upon by a Constitutionally appointed President. They substituted their monumental misguided interpretation of "Constitutional freedoms" for individuals at the expense of the innocents and the economy not to mention the situation of the hospitals which were at breaking point. Reading the transcript of the proceedings showed the glaring ignorance of the Court as a whole on the issue. You could have been excused if you thought you were listening to a right wing radio show with some of Justice Alito’s pontifications on the subject.
Then in an inexplicable illustration of tautologous legal logic they allowed the recommendations to stand for the Health Care Workers who served Medicare and Medicaid patients. In this instance Justice Roberts and Kavanaugh joined the three liberal judges. Their rationale was that they were following the dictum that doctors should do no harm!
VOTING RIGHTS AND THE ROBERTS SUPREME COURT’s DEVASTATING IMPACT
Without laboring the point that all citizens white, black, male, female, land owners and non land owners would not have the right to vote if the strict constitutionalists would have their way, the country is facing its largest existential crisis since Jim Crow. Not only is there widespread voter suppression, voter legislation, which controls the procedure and who certifies the results, are on a line. This would never have happened had not the Roberts Supreme Court capriciously declared a section of the 1965 Voter Rights unconstitutional in 2013. They stated that the provisions of Section 5 were no longer necessary when they patently were, thereby nullifying Congressional legislation. No longer did the segregationist states need permission to introduce changes to their voting procedures. Let that sink in. Congressional Legislation was axed because the Roberts Court believed it was no longer necessary. The fact is that over two hundred discriminatory measures have been mooted and several put into legislation. This is as result of the Roberts Court interfering with a Law passed by Congress. All of which will impact the ability of minorities to vote.
Just in case this was not enough to emasculate free and fair elections the Roberts Court had previously dealt a blow in the “Citizen’s United Case” to the franchise. There the Roberts Court eviserated a bipartisan Campaign Reform Act which inter alia attempted to keep colossal sums of money out of American political campaigns.The essential rationale behind this bizarre ruling was that money was the equivalent to free speech so you could spend as much as you liked because you were exercising your First Amendment Rights. To overcome the problem that tons of this money came from corporations the Robert’s Court declared corporations as individuals. The Constitutionalists had changed the definition of who the Constitution gave rights too. Need Roberts, Thomas et al be reminded in their alleged strict interpretation of the eighteenth century document that corporations in the modern day sense did not exist.
So whether Roberts likes it or not his Court has paved the way for Trump’s Big Lie to be enshrined in law.
THE ROBERTS SUPREME COURT JUDGES AND POLITICS
It is not surprising that five of the current Judges have commented, in one way or another, on the fact that they are regarded as, to use Justice Amy Barrett’s term - political hacks. Justice Barrett opined that at an occasion fittingly hosted by the Senate Republican leader, Mitch McConnell, who rushed her nomination through. Her nomination was against his professed principle that in an election year you don’t appoint Supreme Court Judges. He refused to consider Merrick Garland’s nomination a year before the 2016 election but rushed Judge Barrett's through a week before the 2020 election.
If Justice Barrett didn’t want to be regarded as a political hack she might have shied away from that occasion where she was introduced by Plato’s original political hack, Senator Mitch McConnell. She also might have refused the nomination not only because of the circumstances in which it occurred but because President Trump announced that he was only appointing Judges that agreed with him. She attended a massive Covid spreading WhiteHouse event where Trump probably positive for Covid introduced her to the faithful.
Justice Thomas, who is the most “Constitutionalist” justice of them all stated at speech at Notre Dame University that “The Court that was thought to be the least dangerous branch may have become the most dangerous”. That was a rare insight from Justice Thomas who with his wife are considered right of Ghenghis Khan. While he may not have really agreed that the Court had become the “most dangerous”, his remarks acknowledged that the Supreme Court has become front and central in American politics.
Justice Kavanaugh made his political feelings known at his confirmation, “… (this) effort has been a calculated and orchestrated political hit, fueled with apparent pent up anger pent - up anger about President Trump and the 2016 election….” Kavanaugh too like Barrett had they had any ounce of integrity would have not accepted the nomination that belonged to Merrick Garland. Nor would he make it quite clear where he stood politically.
Then there is Chief Justice Roberts himself who has a strong sense of history and somehow believes he can escape it. If he had had four Judges who profess that they interpret the Constitution as Jefferson intended to be, as a living document and he was the swing vote, he may have had a chance. But tough luck he has been exposed by the duplicity of McConnell and his unholy alliance with Trump who have overwhelmed the court with “Constitutionalists”.The upshot is that he is no longer the de facto leader of the Court. It is Thomas’s Court.
In fairness to Roberts he did try to shut Trump up by commenting that there were no Bush Judges, Obama Judges nor Trump Judges, “There are just Judges”. In fairness his claim to a large extent is true in the lower Federal Courts but Jay H. Ell agrees more with Justice Sotomayor as to the Supreme Court. She when commenting on the patently political direction the court was moving when allowing the State of Texas to override the Constitution by simply using an unconstitutional mechanism to overturn a Federal law that was enshrined by the self same Supreme Court stated, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how that is possible.”.
WHAT NOW AT THE END OF THE DAY
So here we are waiting for the Supreme Court to rule on the whether they can uphold the Constitutional rights of both the elected Executive Branch and elected Congress. Private citizen Trump, who ostentatiously appointed three of the Judges because they were going to do what he wanted them to do, has appealed to the Court to negate a lawful subpoena for documents that rest in the National Archives. Bearing in mind the fate of democracy in the USA and the precedents on matters such as this the fact that this issue has been languishing in the Court for over two weeks when it should have been rejected by return of post is cause for concern.
Jay H. Ell does not believe that the current Supreme Court are functioning in terms of the Mission statement of the Declaration of Independence.
Maybe it’s too late but the time has come to take the Constitution and Thomas Jefferson’s interpretation of it seriously and let Congress “Organize it”. It will need Biden winning both Houses in the midterms with at least fifty - two Democrats in the Senate because Manchin and Sinema have sided with Jefferson Davis over Abraham Lincoln.
The unvaccinated Novak Djokovic can play in the US Open. The Supreme Court has granted him his freedom to play. After all the tennis court is his workplace and the Court has ruled that you can’t initiate vaccine mandates there.
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