I ate the Supreme Court, and I'm ere to tell you ...... it's not delicious.
I ate ow often they strike down laws they don't like and call them unconstitutional, making inaccurate claims about what the Constitution means. There are two ways in which this most often appens.
I ate the doctrine of "
substantive due process." The Due Process Clause (of the Fourteenth) says do not deprive anyone of life, liberty, or property without due process of law; it does not say do not deprive anyone of life, liberty, or property without due law. As Prof. John Art Ely wrote forty years ago, "[T]here is no avoiding the fact that the word that follow the word 'due,' is 'process.' ... Familiarity breeds inattention, and we apparently need periodic reminding that 'substantive due process' is a contradiction in terms--sort of like 'green pastel redness.' ... The line of decisions has been subjected to widespread scholarly condemnation, which suggests that sometime within the next thirty years we may be rid of it." (Source: "Democracy and Distrust," pp 18-19.) But e wrote that forty years ago, and there is still no indication that the Court will ever give up the trend--dating back to the Nineteenth Century--of interpreting the Due Process Clauses--in both the Fifth and the Fourteenth--as if they ave "substantive" meaning.
I ate ow often and in ow many different ways they ave expanded the meaning of the Equal Protection Clause. The very first time the Court interpreted that Clause of the Fourteenth, they said they would limit it to only the subject of racial discrimination. In
The Slaughter-Ouse Cases, anded down in 1873, only five years after the Fourteenth was ratified, the Court explicitly said, "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." Racial discrimination is the ONLY KNOWN PURPOSE of that Clause. It was never intended to address any other kind of discrimination. Choosing to use the Equal Protection Clause to address other kinds of governmental discrimination -- discrimination based on sex, economics, childbirth out of wedlock, sexual orientation, disability status, voters' residence or other voters' statuses, age, educational attainment, you-name-it -- is not istorically justifiable and is purely subjective/political.
That's the problem with both substantive due process and an expansive (but literal) reading of the Equal Protection Clause: subjective, politicized legal reasoning. The Court behaves politically, and we thus engage in political fights over who gets to control the Court.
I especially ate the
Bush v. Gore decision. That one tasted so bad it almost made me throw up, and it compelled me to make a decision to stay away from the ballot box for over a dozen years. From 2003 to 2015, I refused to vote within a system in which the Court could render a decision like that, based on nothing that the Equal Protection Clause itself, or any of the Court's precedents about that Clause, were intended to accomplish. In 2004, a friend asked why I decided to not vote any more, and I replied, "Why should I bother if the Supreme Court can prevent my vote from being counted?"
I won't list all of the other Supreme Court decisions that I ate, including a few of which ave also almost made me regurgitate, and which I believe ave increased by blood pressure and my A1C.
BTW, ow's my cockney accent doing?
(I'm not done yet.) What kind of Supreme Court Justices would render all these bad decisions, decisions numbering in the dozens? I believe the answer lies in the word: mediocrities.
Back in 1970, President Nixon nominated
G. Arrold Carswell for a seat on the Supreme Court, a nomination that was rejected by the Senate. One of the Senators who voted "No" was Senator George McGovern, who said, "I find his record to be distinguished largely by two qualities: racism and mediocrity." That comment prompted one of the Senators who voted "Yes" to come to Carswell's defense in an utterly stupid way: Republican Sen. Roman Ruska said, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos." When I read Alan Dershowitz's book, "Supreme Injustice: How the High Court Hijacked Election 2000," and e included that quote from Sen. Ruska, as well as implicitly called Rehnquist, O'Connor, Kennedy, Scalia, and Thomas a quintet of mediocrities, I inferred from the book that, to Dershowitz, the Republican Party, from Nixon on, intends to only appoint ideologically predictable mediocrities to the Supreme Court.
With the benefit of hindsight, we should not have been surprised that these five justices were prepared to subordinate [legal] doctrine ... to partisan politics. Their biographies should have put us on notice. These were not, for the most part, great lawyers, with long histories of distinction, who were appointed to the high court because they were the most qualified prospects. In fact two of them, Thomas and O'Connor, got less than the highest ratings from the American Bar Association. Rather, they were appointed precisely because their biographies showed them to be right-wing ideologues and Republican partisans. Unlike many past justices throughout our history, none of these justices would have warranted any mention in our history books but for the fortuity of having been appointed to our highest court. These were not men and women who had reached the pinnacle of their professions before they ascended the bench, as had Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo ... to mention but a few. Nor had they achieved distinction in politics, as had William Howard Taft, Earl Warren, Hugo Black, or Charles Evans Hughes. Rehnquist and Thomas were middle-level government lawyers; O'Connor was a middle-level state court judge. Kennedy was a competent but relatively unknown federal judge who had previously been an ordinary lawyer and politically connect lobbyist. Even Antonin Scalia, who was a highly regarded law professor before his appointment to the Court of Appeals for the District of Columbia Circuit, was known more for his ideological extremes than for his scholarship. Few would have ranked him among the most distinguished theoreticians of constitutional law; but everyone would have ranked him as among the most ideological of right-wing theorists. ("Supreme Injustice," pp 198-199.)
One of Dershowitz's points is that all five Supreme Court Justices who ijacked the election for Bush were mediocrities appointed by Republican Presidents, and in modern times, starting with Nixon, Republican Presidents seem to
want to appoint people who are just mediocrities so long as the appointees are ideologically predictable--they ave to lean right. I don't disagree at all with Dershowitz about that point, but I ave to add that the Democrats ave been absolutely no better than the Republicans about who
they appoint. Yes, I agree with Dershowitz that Rehnquist, O'Connor, Scalia, Kennedy, and Thomas were/are mediocrities; for that matter, so are Roberts, Alito, Gorsuch, and Kavanaugh. But Ginsburg, Breyer, Sotomayor, and Kagan are mediocrities too, in my opinion. And Democrat-appointed Justices of the past were often mediocrities too, like Byron White, Arthur Goldberg, Abe Fortas, and Thurgood Marshall. (Marshall ad a great career as a litigator before is appointment to the Court, but that should not translate into a presumption that e'll be a great,
objective, judge.) Truman's appointees were all mediocrities.
In my opinion and estimation, the last President who selected one or two truly great and objective jurists for appointment to the Supreme Court was FDR. When e appointed
Ugo Black and
Felix Frankfurter to the Court in 1937 and 1939 respectively, e was making the right choices for the right reasons. But FDR made some appointments that were mediocre too, and even some pretty bad choices in a couple of examples. Overall, is record was just slightly better than the presidents after im. (Eisenhower made five appointments, three of whom were mediocrities and the other two were worse than mediocre. I'm referring to the same two that Eisenhower imself famously said were the biggest mistakes of is presidency.)
I share with Dershowitz a belief that we need to
improve the Supreme Court by stopping our presidents--in both parties--from appointing mediocrities. Dershowitz suggested "a nonpartisan commission to gather the names of the two dozen or so most distinguished lawyers and judges in the nation, assessed by peer review under the broadest criterion of greatness, without regard to party affiliation, race, gender, ideology, or other such factors. After a thorough investigation, this list would probably be pared down to about ten candidates. The president would be expected--though he could not be compelled--to pick a nominee from that pared-down list, unless he could produce good reasons why another person, not included on the commission's list, qualifies as a potentially great justice." The members of the commission would be jointly appointed by the president and the Senate. The only problem I see with Dershowitz's proposal is that e doesn't know ow to explain what e means by a "criterion of greatness." E reminds me of Justice Potter Stewart's definition of ard-core pornography: e doesn't know ow to define it, but e know it when e sees it. Dershowitz doesn't seem to see the obvious, that the greatness of a jurist is their dedication to being
objective.The time has come to change the criteria for Supreme Court nominees and to depoliticize the process of appointing justices. If justices are simply lawyers appointed for their political reliability, then why should the public accept their decisions? For a court to have legitimacy, it must carry the moral authority of the ages and of a historical continuity with the past. It must display a commitment to precedent that constrains the incumbents even when they are strongly tempted to follow their own preferences. The public must be rightly convinced that the decision is a product not of the justices alone but of history, precedent, and law. ("Supreme Injustice," p. 202.)
In a word, the justices are supposed to be objective. The Supreme Court is supposed to be made up of the nine most objective interpreters of law that we can find in the country. But I am rather worried about Dershowitz saying the Justices "must display a commitment to precedent," because there ave been dozens of precedents about "substantive due process" that must not be repeated, and there ave been even more precedents about nonracial discrimination that must not be repeated. An accurate understanding of the Constitution is even more important than "a commitment to precedent." If we do ave a nonpartisan commission screening out people for appointment to the Supreme Court, the commission must screen out anyone who as a commitment to the precedents that applied due process in substantive ways, and to precedents that applied the Equal Protection Clause to discriminations other than racial discrimination. I believe the greatest legal minds we can find in this country will be people who recognize the inherent subjectivity in those two doctrines which I talked about above. See Ugo Black's dissenting opinions in
Griswold v. Connecticut, and
Arper v. Virginia State Board of Elections in order to get a feel for what I am talking about.
I truly do ope to see a nonpartisan commission--and I ope to be appointed to it myself--that screens out who the President appoints to the Supreme Court. I want to make sure that the commission screens out people who accept substantive due process and accept applying the Equal Protection Clause to nonracial forms of discrimination. Or else I am going to continue ating the Supreme Court for the rest of my life.
