In the whole 36-year arc of my legal career, first as a paralegal, then a law student, then a law clerk, and finally as an attorney for nearly three decades, I have always tried to have, and always wanted to have, tremendous respect for judges, and especially for appellate court justices. In our system of justice, the law that governs all of us, both its content and enforcement, is very much in their hands. In the bedrock case on American judicial review, the Supreme Court's ruling in Marbury v. Madison, John Marshall, the Supreme Court's first Chief Justice, prefaced his ruling by citing the principle that "[i]t is emphatically the duty of the Judicial Department to say what the law is."
Unfortunately, those nearly three decades of experience on my part has seen an erosion in the quality of the personnel on the benches of our justice system, as political considerations have increasingly factored into the selection and approval process. This is not to say that their are not many fine jurists serving the interests of those who appear before them, and the nation as a whole. One need look no further than the ruling by Robert L. Pitman, a federal district court judge in Texas, pausing the recent and utterly cruel Texas law establishing vigilante rights against abortion seekers, to see an example of this. This, however did not stop a federal appeals court from promptly undoing his work. Nor does it forestall the likelihood that the current Supreme Court will use this case to partially or even completely undo the constitutional right to request an abortion prior to fetal viability that the Court recognized in Roe v. Wade, and has subsequently upheld several times over the past five decades.
The current Supreme Court. As packed by George W. Bush, Donald Trump, and especially Mitch McCONnell. With a significant amount of aid, of course, from dozens of pathetically supple Republicans in Congress, in turn supported by the wealth of the 1% and the votes of religious fanatics. Sadly, but perhaps appropriately, there is no clearer and more powerful symbol of the systemic politicization of our nation's judicial system than its highest court.
Its current supermajority of six Republican appointees includes two men likely to have committed sexual abuse, a political legacy from a Reagan appointee, and a former law professor who, at her express-checkout-speed confirmation hearing, could not identify the contents of the First Amendment. To say nothing of a Chief Justice who promised he would only call balls and strikes, and has instead put considerable effort into re-writing the rule book on the fly. You need only look at his masterpieces of constitutional perfidy, the Citizens United and Shelby County cases, in which money became speech, corporations become people, and African-Americans lost the right to vote. to know the extent to which that statement is true.
And, like a fish that rots from the head down, the entire federal bench has felt the effects of the poisonous extent to which our entire system of government has been bought out by the wealthy. It shouldn't shock anyone that legislators with inside-the-market dealings are more than happy to approve federal judges with exactly the same problem.
Nor should it shock anyone that the Supreme Court's corrupt composition has finally caught the attention of the public, and the public has weighed in. And the public is giving the Court a big thumbs-down. Even the business press is doing so. Hell, even high-ranking Republicans are doing so.
Indeed, Joe Biden was elected President in no small part because he promised to be responsive to the demands of progressives to clean up the mess the Republicans have made of our judiciary. Among other things, those demands included expanding the number of justices on the Court so that Biden could then create a supermajority of liberal court justices. Biden, whose political plate was fairly full when he came to office, decided to do what many politicians before him have done: refer the matter to a committee, empowered to make recommendations (preferably, politically palatable ones).
In this case, however, it's looking like Biden's kick-the-can solution to this crisis isn't going to give progressives their preferred solution. Early reports indicate that the commission he appointed is not going to green-light the court-packing option, preferring instead to consider a range of possibilities that might attract broader support, such as limiting the terms of justices. That latter option, however, almost certainly would require an amendment to the Constitution, which, I'll remind you, requires for its approval a two-thirds majority in both houses of Congress AND three-fourths of the state legislatures. Yeah. Good luck with that happening.
And, progressive as I am, I have never been a big fan of the whole court-packing concept. The historical precedent on this subject is not encouraging. And, even if that was not the case, the potential for political retaliation is all too obvious. We could eventually have a Supreme Court bench that would require an entire state to house it. And, otherwise, perhaps be no better off than we are now. There is, of course, the possibility of legislation to control the court's docket, taking off of it cases relating to fundamental rights, such as abortion and voting. But, there again, the potential for political retaliation exists. And, even if it didn't, have we really considered the downside of doing something like that? Is it really that difficult to imagine a situation in which we might need the availability of the Court to rule in such a case?
You can, I think, considering all of this, scarcely blame Biden's committee for punting, if in fact that's what it has chosen to do. So what should we do?
Before we discuss the answer to that question, it's time for progressives to take a hard look at what many of them didn't do when it absolutely, positively, could have made a gargantuan difference.
Vote.
I'm thinking in particular about two elections in which many progressives didn't do that. Or worse, cast a vote for a third-party candidate that was destined to do no more than salve the softer side of their conscience.
2000. And 2016.
A combination of Al Gore and Hillary Clinton presidencies would have given us a liberal Court that would have been impervious to the worst attempts of the right wing to destroy our democracy. And even one of them might have been enough to do that.
Fellow progressives, do you want to know why the right wing is, frankly, beating the living daylights out of us? It's very simple. They play the long game. They're willing to take the thousands of steps they need over decades to get where they want to go. They understand the value of taking a path that lessens the obviousness of their intentions, and increases the probability of reaching their destination. They are people who believe, rather than think, which makes it easier to follow orders and march. They are not people who want to solve problems; they see themselves and their beliefs as the solutions to all problems. All they want to do is obey. And, unfortunately, there are nefarious, well-resourced individuals who are willing to take advantage of that kind of faith.
So they organize. And donate. And knock on doors. Year in, and year out. And you know something else they do year in and year out? Vote.
This is why the Court's building on Maryland Avenue in D.C. is now the High Temple of Gilead. This is why the Court is slowly but surely turning the First Amendment's freedom of religion protects into freedom for only one, clearly preferred religion--and, especially, the freedom for that religion to stomp all others out of the marketplace of ideas and the American way of life. This is perhaps the most significant reason behind the transformation of the United States government into one that is run of, by, and for the multinational corporations that have been declared to be people, at the expense of the needs and concerns of actual people.
Sit at home in 2022, nurse your bothsiderisms with respect to our political choices, and watch the power of choice disappear. By then, it will be too late to reflect on the fact that even a compromised choice is better than none at all. And we are perilously close to none at all. And the only option after that is civil war.
As Walt Kelly once put it, we have met the enemy, and he is us.
"But it's too late," you might say. "The Court is packed and it would take years to unpack it." It might. Clarence Thomas has been on the Court for nearly 30 years. He's unlikely to be around much longer. And, in any case, Stephen Breyer will probably be ready to retire in a few years. Do we want to see a six-Justice conservative majority turn into a seven-Justice majority?
There is no excuse for not getting out in every election, getting out every like-minded voter that you can, and together voting every single solitary person with an R after his/her/their name out of office. You want to unpack the Court? That's how you unpack it.
More to say about voting and the need to do it next time. As they used to say in the heyday of broadcast TV and radio, stay tuned.
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