Senate Majority Leader Charles Schumer said that the conservative Supreme Court justices who had promised to be faithful to legal precedent had “lied to the U. S. Senate, ripped up the Constitution, and defiled both precedent and the Supreme Court’s reputation…at the expense of women who could soon be stripped of their bodily autonomy.” Sen. Susan Collins, seemingly shocked, said that the fact that justices who had pledged to respect Roe v Wade as “the law of the land” were now proposing to strike it down, and ignore precedent, was “completely inconsistent” with their promises to her, and in public. (New York Times, Wednesday.) Are American judges now joining the most expedient of their developing world counterparts?
As we wrote recently (37 – “Have You No Shame?” The Big Lie, April 26; 41 - The Wages of Expediency, May 2) lying and expediency are prevalent in public life everywhere. But even at home, in our nation? No one should be surprised now, I fear, that candidates for appointment and Senate confirmation to life-time positions on the U. S. Supreme Court would lie to obtain their elevation, or in this particular case, would have lied to energize a political campaign to overturn not just settled precedent but the types of decisions that arch conservative opinion has denigrated from the years of the Reagan presidency, if not before.
But what should be more worrying to readers of this Newsletter is that the globe’s paragon of judicial independence has now been shown to be nakedly partisan. When Iranian, Russian, Indian, Pakistani, and a host of African supreme courts do the bidding of their executives and ruling parties, Westerners shrug shoulders knowingly and speak smugly. For the justices of the U. S. Supreme Court to have now joined the ranks of politicized courts across the rest of the world is not only sad and shameful, but also dangerous.
A close look at the opinion makers on the Supreme Court also reveals that Justice Clarence Thomas, the senior judge on the winning side, chose (as is his prerogative) Justice Samuel Alito to write the draft opinion that has now caused such consternation. (Did Thomas consult his wife first?) Alito’s position has long been declared: that Roe was wrongly decided from the start – that as Attorney General Edwin Meese III declared in 1987, the Roe decision belonged “on the ash heap of legal history.” (New York Times, Wednesday) Those like Trump, who bowed to the Federalist Society before selecting nominees for the court, curried expedient political favor by seeking potential justices based on their anti-Roe views. Indeed, an extraordinary sentence deep into Charles Savage’s New York Times column yesterday boldly says “Trump fulfilled his end of the deal, putting forward…three justices [Gorsuch, Kavanaugh, and Barrett who] …appear to have given preliminary approval to overturning Roe.” Did Sen. Collins not understand at the time of their confirmations that she was being gulled? Did she care that the candidates successively were, at the very least, being expedient?
By the time that Collins was blessing those critical appointees to the Court, Trump had been lying (according to evidence in my earlier Newsletter) hundreds of time, certainly uttering big lies four or five times a week, with hardly any Republican Party pushback and rather ineffectual “fact-checking” by the Washington Post, the New York Times, CNN, and a few overseas news outlets. And Rep. Kevin McCarthy has not stopped lying.
Putin, as I wrote before, was emboldened or at least joined by Trump’s lies. So the two of them were co-conspirators in deceit well before Russia’s invasion of Ukraine and well before Trump tried to persuade President Volodymyr Zelensky of Ukraine to turn up false dirt about President Biden’s son.
Judicial probity and judicial integrity is essential to the conduct of domestic affairs everywhere on the planet. In Pakistan, there are frequent accounts of offenders bribing judges to punish lightly, if at all. In Guatemala, distinguished judges have been forced to flee their country for ruling honestly, consequently displeasing heads of state or drug overlords. In El Salvador, President Nayib Bukele first sent troops into Parliament to obtain laws to his liking and then sacked a raft of judges who were out of step with his dictates.
For democracy’s sake, and for constitutionalism everywhere – even perhaps in a post-Putin Russia – the highest pinnacle of American jurisprudence should be scaled, and then held, but justices who cannot be accused of lying, and who could therefore be presumed to respect the settled precedents of their own institution as well the widespread public acceptance of those earlier findings. Otherwise – whatever is the final published opinion of the U.S. Supreme Court regarding the abortion cases being decided this spring --- the Court will be seen across the globe as no less political in its findings and views as a host of heavily compromised tribunals across the developing world. Just as the U. S. presidency is battling uphill to recover from the desperate deceitful travesties of the Trump era, so the legitimacy of today’s Supreme Court will take years and new personnel to restore. Chief Justice John Roberts knows, and as Justice Sonia Sotomayor exclaimed in December, the stench of the Court’s politics is becoming too pervasive.
As the U. S. mightily assists Ukraine to save the free world, to uphold democratic values, to preserve the essentials of consensual global order, and to prevent might from overcoming right, how to we now restore the fundamental integrity of our own Supreme Court, and thus of judicial fairness and independence?
Back to War and Diplomacy tomorrow
The U.S. Supreme Court lost credibility as an independent, autonomous, apolitical power free from influence when it decided Citizens United v. FEC.