Trump Has Made the Supreme Court Nakedly Political

One of the things that historically has given the Supreme Court its power - in addition to those granted by the U.S. Constitution - is the overall perception by the public that the Court is non-partisan and that, although imperfectly, its rulings reflects the beliefs of mainstream, non-extremist Americans. If Brett Kavanaugh or any other Republican partisan is successfully appointed to the Supreme Court by a man who many - perhaps a majority - of Americans view as an illegitimate occupant of the White House (in my view, the Electoral College failed its duty under the Constitution when it confirmed his election), the perception of the legitimacy of the Court's rulings will erode.  With strong majorities of Americans supporting Roe v. Wade, LGBT rights and marriage, non-discrimination laws, environmental protection laws, health care coverage for those with pre-existing conditions, and the like, if the now GOP extremist controlled court begins dismantling these precedents and policies to take America back to the GOP's dream of a new Gilded Age with all its excesses, the Court's legitimacy will be gone and we will be one more step closer to the demise of American democracy.  A column in the New York Times looks at this very real danger and the slippery slope that the nation is headed down.  Here are excerpts:

President Trump was always going to pick a conservative for the Supreme Court. The only question has been whether to replace Justice Anthony Kennedy with a “business conservative” or a “religious conservative.” No one seriously thought that he would consider a moderate, a liberal or an ideologically ambiguous replacement.

Sure enough, Brett Kavanaugh is a conservative in good standing. . . . But we wonder whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.

The court has recently entered a new era of partisan division. If you look at close cases — 5 to 4 or 5 to 3 — going back to the 1950s to illustrate this division, you will see that the percentage of votes cast in the liberal direction by justices who were appointed by Democratic presidents has skyrocketed. And the same trajectory applies on the other side: The percentage of votes cast in the conservative direction by justices who were appointed by Republican presidents has also shot up.

The trend is extreme — and alarming. In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. . . . In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution.

It is hard to think of any historical precursors. The most famous period of ideological division on the court was in the 1930s, when it repeatedly struck down liberal legislation. But what is remarkable is that the division was not strongly partisan.

The modern divisions on the court can be traced to the Warren court of the 1950s and 1960s. The Warren court was not partisan — two of its liberal stalwarts, William Brennan and Earl Warren himself — were appointed by Dwight Eisenhower, a Republican. But the Warren court took a liberal stand on the most controversial issues of the day — including civil rights, sexual freedom, and the rights of criminal suspects and political dissenters. The post-Warren court case of Roe v. Wade finally galvanized the right. Since then, Republican presidential candidates have repeatedly promised to appoint conservative jurists to the court.

For the first time in living memory, the court will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents.

Frustrated with the Supreme Court’s opposition to the New Deal, President Franklin Roosevelt tried to pack the court — that is, add more justices. Although the plan died in Congress, the court also backed down from its confrontation with the president. Both Roosevelt and the court were badly damaged by the clash.

Today we see similar attacks on the judiciary in Hungary, Poland and other illiberal democracies. Assaults on judicial independence are made easier when the public comes to view the judiciary as a political body. This risk, and not just the identity of the next justice, should be at the center of public attention.

Be very afraid of where all this is headed.

Chief Justice John Roberts, an Abysmal Failure

Chief Justice John Roberts once stated that he wanted to restore the image of the United States Supreme Court with the American public.  Instead, he has led the Court to historic lows in public approval and seems hell bent on crafting majority opinions that history will view as horrifically wrong.  While Roberts Court's rulings may sit well with big business and theocrats, they ought to send shivers down the backs of most Americans.  A piece in Salon looks at the sinking image of the Supreme Court and the ways in which Roberts will be remembered, absent huge changes, as an abysmal failure by history.  Here are article highlights:

It wasn’t quite March 6, 1857, or Dec. 12, 2000, but make no mistake: June 30, 2014, was not a good day for the U.S. Supreme Court. Not simply because it saw the court once again unveil two major decisions decided by a slim majority along partisan lines, but because the argument offered by the majority in the more controversial and closely followed of the two decisions was so conspicuously unprincipled that it will almost surely further erode public confidence in the nation’s highest court. As a Gallup poll also released Monday morning showed, it was already low; I bet it’s about to sink even lower.

In order to understand why Monday was such an important — and unfortunate — day for one of the United States’ most hallowed institutions, it’s necessary to revisit something Chief Justice John Roberts said in an interview way back in 2006. After crediting John Marshall’s legendary diplomatic skills for maintaining the unity and establishing the credibility of the court during its crucial early years, Roberts argued that, after 30-odd years of discord and squabbling, the Supreme Court was “ripe for a similar refocus on functioning as an institution” rather than as a collection of individuals with their separate politics, prejudices and philosophies. If the court failed to come together under his leadership, Roberts warned, it would “lose its credibility and legitimacy as an institution.”

Remember now, this was in 2006, when 5-4 splits on major, hot-button decisions was not yet the norm. 

[I]t’s hard to conclude that John Roberts is, by the standards he established in 2006, anything more than an abysmal failure. More than at any time since perhaps the Lochner Era, the court is not only seen as a political actor, but is considered a particularly ideological and combative one at that. . . . . In 2005, Gallup asked Americans how much confidence they had in the Supreme Court: 41 percent said “a great deal” or “quite a lot.” That number today? A paltry 30 percent. 

 It’s in this context that Monday’s two big rulings — Harris v. Quinn and Burwell v. Hobby Lobby Stores, Inc. — are most properly understood.

So when Justice Alito, who was the chief author of both of this term’s blockbuster decisions, relies on arguments as transparently political as those he wielded to decide Harris and Hobby Lobby, it makes Roberts’ work toward improving the court’s image that much harder. 

In Roberts’ court, it’s not abstract ideas of justice and law and republican government that win the day — it’s corporations, religious conservatives, employers and anyone who worries first and foremost about the interests of the powerful and the elite. Unless John Roberts’ goals were other than those he outlined in 2006, Monday’s decisions can only be interpreted as yet another saddening defeat.

 When the vast majority of the public loses confidence in the Supreme Court, it does not bode well for the rule of law.