Over the last four or five decades, every time a Supreme Court vacancy opens up, our democracy engages in a great throat-clearing, and for a brief moment the motivations of our political players are on full display.
The resignation of Justice Anthony Kennedy this week is giving us another look at the health of our democratic system, and it doesn’t look good. The sickness was evident the last time around, when Majority Leader Mitch McConnell and Senate Republicans refused to give a hearing to President Obama’s 2016 nominee to the seat freed up by the death of Antonin Scalia.
This article first appeared in Salon
They stole that seat, but the truth is, Republicans have owned the Supreme Court, with its five-to-four conservative majority, pretty much since Richard Nixon appointed Chief Justice Warren Burger, and Justices Powell, Rehnquist and Blackmun. The court shifted further right when President Reagan elevated Rehnquist to Chief Justice and appointed Scalia and Kennedy, and even further right when Bush I appointed Clarence Thomas and Bush II appointed Samuel Alito and current Chief Justice John Roberts.
There the court has stood, with a five-to-four Republican-appointed conservative majority, now driven even further right with Trump’s appointment of the smiling liar Neil Gorsuch, and now he gets to fill Kennedy’s squishy conservative seat (his votes to uphold Roe v Wade and on gay rights have driven Republicans insane).
Right-wing Republicans established an entirely new right-wing “legal” organization, the Federalist Society, to watch over the Court. And the conservative think tank stalwart Heritage Foundation has played and is playing again a major role in insuring Trump’s pick to replace Kennedy is far right enough. The Heritage Foundation is funded by such wealthy right-wingers as the Olin Foundation and the DeVos Foundation, and $28 million was provided in 2016 by the Scaife Foundation, founded by far-right billionaire (and Clinton hater) Richard Mellon Scaife.
There is serious right-wing money, not to mention “serious” right-wing intellectual firepower, behind the Republicans’ obsession with the Supreme Court. But what’s really going on here? Why this conservative Republican obsession with the Supreme Court?
They want a bulwark against voters, that’s why. The other two branches in our famous “three-legged stool” of a constitutional system, the Executive and the Legislative, are elected by voters. Every year, voters are getting younger, and more female, and browner and blacker.
What Trump and McConnell and the rest of the Republicans want is a white people’s court. They want a court that will protect the property they own, the corporations they control and the state governments they run in “red” states across the country. The current court is already a white people’s court. So is the one we’ll get on Election Day.
Let’s take a look back at what the Supreme Court used to be. It used to be an institution that took on great issues and came down with findings that established great principles. Look at Brown v Board of Education. Before Brown, school systems around the country, not just in the South, could openly and freely segregate themselves, and did. The “Board of Education” in Brown was the Topeka, Kansas, board of education. It wasn’t in the South. It was right there in the so-called “Heartland,” and out there in Kansas, they were segregating schools, municipal pools, parks, recreation centers, all sorts of things. But Brown changed all that, and they did it in a nine-to-zero unanimous vote. The Supreme Court stood up and told the nation, this is wrong, and it’s going to stop.
The Supreme Court did the same thing in the early 1960s with school prayer, in the Engel v Vitale decision outlawing the reading of a state-written prayer in schools (6-1), and in Abington School District v Schempp, prohibiting Bible reading in schools, eight-to-one. A few years later, in Loving v Virginia, the court held in a nine-to-zero decision that states could not outlaw marriage between whites and African-Americans.
9-0. 6-1. 8-1. 9-0. 9-0.
What has the current Supreme Court given us?
Well, they have taken an itty-bitty little chisel and an itty-bitty little hammer, and they have chipped away at some of the great laws that were passed over the last 70 years giving rights to people who were denied those rights before. The Voting Rights Act was passed with the blood of civil rights workers sprayed all over it. What was going on in the South? Black people were denied the right to vote outright, or permitted to vote only under absurd restrictions designed to lower the number of black voters to near zero. The Voting Rights Act changed that. But what did the Supreme Court of Chief Justice Roberts do? Well, in Shelby County v Holder, they found five-to-four that the clause making enforcement of the Voting Rights Act possible was unconstitutional, because things had allegedly changed in the South.
And what happened after Shelby? Southern states, and many Republican-led states in the North, immediately passed voter ID laws and other restrictive measures intended to make voting by minorities more difficult. In Pennsylvania, a federal court found that the legislature had a specifically racist intent with the voting restrictions they passed.