The Choice: "It's the Supreme Court" (AGAIN)
Either Biden or Trump will nominate the next Supreme Court Justice(s)
Issue #633 The Choice, Monday, June 10, 2024
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The United States Constitution, which was ratified in 1789 and is the law of the land, established three co-equal branches of government. The 1789 Judiciary Act of 1789 defined the Supreme Court, which first assembled in 1790. Justices are nominated by the president and confirmed by a simple majority of the Senate.
The Supreme Court of the United States (SCOTUS) was initially composed of a Chief Justice and five Associate Justices. For the first 101 years of the Supreme Court, the Justices were also required to "ride circuit," and hold circuit court twice a year in each judicial district.
There were nine circuit courts in the late 1800s, which is why we now have nine Justices. The number of justices is not specified in the Constitution.
SCOTUS justices are appointed for life, and only death, resignation, or impeachment can remove them. So far, there have been no impeachments of justices, but a couple of associate justices have come close to impeachment by the House of Representatives and removal after trial by the Senate.
The only associate justice to resign because of a financial scandal was Abe Fortas, who was nominated by President Lyndon B. Johnson.
Fortas had accepted a US $20,000 (equivalent to $166,000 in 2023) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life).
This payment was only one of several such payments Fortas received, and these kinds of payments to justices were not uncommon, but for relatively low amounts. This payment engendered calls for Fortas to be impeached and motivated Richard Nixon to order the Justice Department to investigate Fortas. The then-Attorney General William Rehnquist advised Nixon that an investigation was possibly illegal. Chief Justice Earl Warren urged Fortas to resign to protect the reputation of the Court and avoid impeachment proceedings.
Associate Justice Abe Fortas resigned from the Court on May 14, 1969. In June 1970, Richard Nixon nominated Harry Blackmun who was sworn into office.
The 2016 election was primarily about the Supreme Court
During the 2016 election season, President Barack Obama and Democratic Presidential Nominee and former Secretary of State Hillary Clinton repeatedly warned that the election was about the Supreme Court. Associate Justice Ruth Bader Ginsberg was ill, and Senate Majority Leader Mitch McConnell had already refused to even consider Obama’s nomination of Merrick Garland for the opening in the Court. In March 2016, when the Court was evenly split with 4 liberal and 4 conservative justices and one vacancy, McConnell said that it was “too close” to the election (which was still eight months away) to consider a new justice. If Merrick Garland had been confirmed, the Court would have a 5-4 split with liberals and centrists in the majority.
In November 2016, because just enough people either voted “their conscience,” voted 3rd-party, or otherwise didn’t vote for Hillary, Convicted Felon Donald Trump won the Electoral College although he lost the popular vote by over 3 million votes. The Senate Republicans stayed in the majority as it had been ever since 2010 when again, not enough Democrats voted in the midterm elections because they thought that President Obama hadn’t “done enough” in the 18 months since his inauguration. The Republicans had a “Big Red Wave,” including ushering in the “Tea Party” members, most of whom later became MAGA.
Less than two weeks after his inauguration (which had tens of thousands fewer attendees than Obama’s inauguration), at the beginning of February 2017, Trump appointed and the Senate confirmed Neil Gorsuch to fill the vacancy left by the death of Associate Justice Antonin Scalia. That is the vacancy that Mitch McConnell refused to fill while Obama was president because he said that it was too close to the election eight months away.
Justice Gorsuch’s mother, Anne Gorsuch Burford, was the former administrator of the Environmental Protection Agency, and her time at the EPA was wracked by scandals. She resigned her post in disgrace on March 3, 1983.
In July of 2018, Associate Justice Anthony Kennedy suddenly and surprisingly resigned from the Court. He had already staffed his office for the new SCOTUS session that was to start in October 2018. Justice Kennedy, although appointed by Republican President Ronald Reagan, was considered a “swing vote,” because his decisions were considered both liberal and conservative.
In September 2018, Trump nominated Brett Kavanaugh to fill Justice Kennedy’s vacancy. Kavanaugh’s Senate hearings were very contentious, especially considering that Kavanaugh was credibly accused of sexual assault several times during his college years. The Republican majority in the Senate confirmed him anyway. Associate Justice Clarence Thomas was also credibly accused of sexual improprieties during his Senate confirmation hearings. Both of the women who testified against the confirmations, Anita Hill (Thomas) and Christine Blasey Ford (Kavanaugh) were not believed and were vilified for testifying against men.
In September 2020, Associate Justice Ruth Bader Ginsburg died. In October 2020, less than three weeks before the November election and while early voting was already underway, Trump nominated and the Senate confirmed Amy Coney Barrett as his third SCOTUS appointee. This time, Senate Majority Leader Mitch McConnell didn’t care how close to the election is was, as long as Trump could appoint another SCOTUS justice.
In November 2020, Trump lost the presidency and in January 2021, McConnell lost his Senate majority status, but the Supreme Court now has a 6-3 conservative majority.
The Current and Future Supreme Court
All three of Trump’s appointments stated under oath during their Senate confirmation hearings that Roe v Wade was settled law and they would not change it. They lied. In June 2022, right at the end of the SCOTUS term, they, along with the other conservative justices ruled that the federal right to an abortion was now unconstitutional. The ruling left the reproductive access policies “up to the States” and almost immediately, Republican-led states instituted restrictive abortion policies, no matter the condition. Many women have almost died because doctors are now afraid to offer any kind of abortion care, even if the woman has to carry a dead fetus “to term,” contracts sepsis, or otherwise suffers from a non-viable pregnancy that endangers her life and/or future fertility.
Some SCOTUS justices have signaled a desire to eliminate the right to contraception that was legalized in the 1960s, and Justice Clarence Thomas has also stated that he wants the right to same-sex marriage, which was upheld by the Supreme Court in 2015.
The current 6-3 far-right majority of the Supreme Court has also almost decimated the articles of the 1965 Voting Rights Act and is set to take away as many rights from Americans as they can, including ignoring the First Amendment that states that no laws can be made respecting an establishment of religion or prohibiting its free exercise. The MAGAs and many other Republicans are trying to establish an extreme Christian theocracy as the law of the land.
So now, for the upcoming 2024 election, the Supreme Court is still a very important consideration. Justices Samuel Alito and Clarence Thomas have serious ethics issues, and Chief Justice John Roberts (appointed by President George W. Bush) has done nothing to upheld the very weak Code of Ethics the Supreme Court approved for itself.
While at present there are no Justices who are ill like Ruth Bader Ginsberg was, who knows what might happen to one or more Justices over the next four years?
But if President Joe Biden is re-elected and we regain the majority in the House and increase our majority in the Senate to at least 55 members, we will have the opportunity to expand the Court with possibly four new justices. Thirteen SCOTUS justices would equal the current number of circuit courts, and give the Court a 7-6 liberal/centrist majority over the current right-wing justices. Enlarging the Court would be called “packing the Court” by the Republicans, although they have “packed the Court” with far-right conservatives in the last few years.
Vote.
So it is imperative that the Democrats vote in huge numbers to win the presidential election and as many down-ballot races as possible in November.
The choice is democracy or dictatorship, period.
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