The radically partisan U.S. Supreme Court
It is important that last term’s decisions from the U.S. Supreme Court not be forgotten amid the recent drama in the presidential race. The radical conservative majority has dramatically adjusted the law to achieve Republican Party goals.
The first is to protect Donald Trump from prosecution. While democracy would require an urgent prosecution of cases against a presidential candidate, so that voters would know if the charges were politically motivated or legitimate before casting their votes, the Supreme Court has delayed most of the cases against Trump until after the election. They were assisted by Aileen Cannon, the Trump-appointed federal judge in Florida, who has claimed that the special prosecutor in the stolen documents case was wrongfully appointed, in spite of decades of rulings that confirm that appointment process.
Shockingly, the Supreme Court gave the president absolute immunity for all official acts, though it allowed that a president could be criminally prosecuted for some unofficial acts but did not demarcate a clear line between the two. The justification for this blanket immunity is that the conservative majority did not want the president to feel constrained from doing what he thought best for fear of criminal prosecution. But is it really a bad thing for the president to feel constrained by the law? Has any president ever been criminally prosecuted for things that they should have been allowed to do? President Gerald Ford pardoned Richard Nixon after Watergate specifically because he feared that a criminal prosecution was likely, and he wanted the “long national nightmare” to end.
Somehow this Supreme Court looked at Watergate and decided that rather than allowing a president like Nixon to feel constrained from doing things that were illegal, he should have been allowed to use government resources to spy on the Democrats and he should have been allowed to quash the investigation by the FBI.
Nixon’s actions were child’s play in comparison to Trump’s, which include pressuring state officials to find votes for him, trying to change the results of the Electoral College vote, and instigating an insurrection. The Supreme Court decision to give a president broad immunity will be remembered as the 21st century equivalent of the notorious 1857 Dred Scott decision, which upheld slavery and helped lead to the Civil War.
This court has violated every principle it claimed to hold. Chief Justice John Roberts claimed to venerate judicial restraint at his confirmation hearing in 2005, claiming the court’s job was to only “call balls and strikes,” not make sweeping decisions that dramatically change society. Judicial restraint means only taking cases that have standing and deciding them narrowly. Instead, this court has considered hypothetical cases, such as the website designer who didn’t want to be forced to sell her services to a gay couple but had never actually faced that prospect, and decided them broadly.
The conservative justices said in their confirmation hearings that they respected previous Supreme Court decisions, and specifically considered Roe v. Wade settled law. Their 2022 decision in Dobbs v. Jackson, which overturned Roe v. Wade and allowed states to regulate abortion, demonstrated that their claims were lies. You can make an argument that the court should not be restrained by previous decisions, and that the court should consider hypothetical cases and make rulings that are as broad as possible; you just can’t do so and claim to adhere to judicial restraint.
In another shocking case, the Supreme Court has made bribery legal again. After a 2016 decision making it harder to convict government officials for bribery unless there was a specific quid pro quo, now the court has decided that as long as the government official is paid after the act, it’s not bribery.
Bribery and corruption are how governments and societies fail; they are drains on productivity and inculcate a disrespect for the law. While this might reflect the conservative notion that everything should be run like a market, this violates the foundation of our economic and legal strength, which is equality before the law.
In a series of recent bad decisions, one of the most significant is Loper Bright Enterprises v. Raimondo, which overturned the so-called Chevron Doctrine. The 1984 decision in the case that pitted Chevron against the Natural Resources Defense Council was hailed by conservatives at the time because it allowed the interpretation of environmental regulations by President Ronald Reagan’s Environmental Protection Agency, which was headed at the time by Ann Gorsuch, Justice Neil Gorsuch’s mother.
In the 40 years since, unless Congress had directly addressed the issue in question, interpretations of regulatory administration by the experts in those bureaucracies were to prevail, as long as they were reasonable. It has been the foundation of administrative law, cited in over 18,000 cases.
The case that the Supreme Court heard to overturn the Chevron Doctrine was one in which the National Marine Fisheries Service required that herring fisherman pay the costs of monitoring their catch. The fishermen objected. Although most of the fishermen operate small, family-type businesses, the partisan importance of the case is shown by the fact that the case was backed by the wealthy, anti-regulation obsessed Koch family. The agency ended the program, but in spite of there no longer being a reason to hear the case, the Supreme Court took it up. In overturning the Chevron Doctrine, the Supreme Court has decided that courts should determine the minutia of regulatory decisions, instead of experts at the agencies.
Demonstrating the dangers of the courts taking on this responsibility, Justice Gorsuch in one case confused nitrous oxide, which is laughing gas, with nitrogen oxides, which are components of smog. Now, I don’t blame Gorsuch for confusing the two, because for laymen, they are very similar. But that’s why laymen should not be making such decisions.
The judicial branch of government is the branch that is least representative of the people, but this court is particularly unrepresentative. Since 1976, the office of the president has been controlled for an equal amount of time by each of the two major parties, but Republicans have picked 10 Supreme Court justices, while Democrats have picked only five. And of the six conservative justices on the court, five were appointed by presidents who lost the popular vote.
As a result of conservative judicial activism, the current Supreme Court is radically remaking the legal system to fit an agenda that Republicans cannot implement through the democratic process. The radical actions of this Supreme Court will encourage a movement for judicial reform.
Kent James is a member of East Washington’s borough council.