How to Fix the Supreme Court, Part Three: A is for Amy
The bad news is, we're stuck with her. The good news is, even the GOP doesn't know where she'll wind up.
And from the very beginning I have been nothing more
Than someone else’s dream or nightmare
Or the reflection in a mirror not my own
I have no other identity, nor bodily form, nor reason to exist
But I have known the name of each crime written for me
On the list I must commit
—“The Decade Markings” (Anna Akhmatova, 1955)
Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded. Government practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny.
—Lynch v. Donnelly (Sandra Day O’Connor, 1984)
Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?
—McCreary County v. ACLU (Sandra Day O’Connor, 2005)
Rose garden filled with thorns
Keep you second guessin' like
“Oh my God, who is she?”
I get drunk on jealousy
But you'll come back each time you leave
'Cause darling, I’m a nightmare dressed like a daydream
—“Blank Space” (Taylor Swift, 2014)
Guest Post by Moscow Never Sleeps
NOTE: As of 10 December, the time of this writing, the State of Texas, joined by over a dozen other Trump states, has filed a “Hail Mary” SCOTUS brief against the Blue Wall and Georgia. They argue the election procedures in those four defendant states—all of which were established by Republican legislatures still in power—are different than the election procedures in some other states (as the Constitution has provided since 1789), that this violates the Establishment Clause of the U.S. Constitution (it doesn’t), and therefore the Supreme Court has standing in hearing a dispute over state election law (it shouldn’t). Texas does not get halfway through the first page of its argument before it cites the Rehnquist Concurrence from Bush v. Gore, the one Brett Kavanaugh raised a few weeks ago over in the Wisconsin case—and the one I was railing about in Part Two—in favor of SCOTUS jurisdiction in this dispute. If the Court agrees to hear this case on the day this goes to print, 11 December 2020, they will cement this jurisdictional principle into law, even if they ultimately find against Texas’s material complaint. Trump will almost certainly lose, but Rehnquist’s dicta in Bush v. Gore will become good law in Texas v. Pennsylvania. Four years from now, when the next popular vote loser the Republicans put forth needs the precedent necessary to call the Supreme Court into the electoral melee early enough to frustrate certification and safe harbors, the brick joke Kavanaugh and his pals started nearly a quarter century earlier is going to land.
In The Gangs of New York, Daniel Day Lewis’s Bill the Butcher’s fake eye proves he is the biggest badass in the Five Corners neighborhood of 1860s Manhattan. At some point before Leonardo DiCaprio’s hero comes on the scene, Lewis gets his ass soundly kicked in a fight by DiCaprio’s father (Liam Neeson). Out of shame, the Butcher carves out one of his own eyes. It is this act of self-mutilation that inspires the hard man to become even harder. He kills Neeson with the same knife in revenge, and then proclaims to everyone within shouting range that he would wear the marble in his eye-socket with perverse pride to remind him to never lose to anyone again as long as he lives.
Amy Coney Barrett is the Democrats’ glass eye. If we ever want to regain the respect of our enemies and the sullen obedience of our own extremists, we must wear her on the Court as our proud disfigurement for everyone to see until our grandchildren send us birthday greetings from somewhere on Mare Tranquillitatis. We should have seen her coming. We had several chances to avoid her. When the Republicans finally brought her out, like an overdue promise, we fought them like a punk. She is our badge of humiliation, and our reminder not to feel shame for fighting dirty when the other side has no honor.
There’s not a single Republican on my Wall of Blame for the Stepford Justice. Not Barrett: this is the title that appellate judges play for. Not Trump: judicial nominations were simply his transactional obligation to McConnell in exchange for protection in the Senate. Not George Conway and the Federalists: we gave them yet another opening, and they exploited it. I don’t even blame McConnell any more than I blame the local alligator for treating the neighborhood lapdogs like breath mints. It’s not the Republicans’ fault. They’ve been working this long game since all of Nixon’s own appointees turned on him over the Watergate tapes. It’s our fault for not noticing for 45 years, and for making it easy on them.
The Supreme Court has rarely been packed with what the right-wing catechism wants us to consider “liberal justices.” FDR and Truman laid in a majority of progressives for about 15 years, but enough of them died off or retired under Eisenhower to allow Ike to balance them out with five justices in eight years. JFK got a couple more on, as did LBJ, shifting the Court leftward for five years. But in 1968, LBJ made two unforced errors and handed Richard Nixon a Supreme Court with two openings on it; since then we have not had anything near a “Democrat-appointed liberal-court majority.” In the past 52 years, Republicans have held the White House for 32 years (62% of the time), and named 16 out of 20 Justices to the Court (or 80%); Democrats have held the White House for 20 (38% of the time), and named four (20%). I think that statisticians call that a “significant negative deviance,” but you and I know it as an ass-kicking.
Anyone who thinks that this is just the vicissitudes of history, as opposed to a sizeable differential of pure political skill, is naïve. As much as they cry crocodile tears over the occasional liberal outcome from the Supreme Court, Republicans have outplayed us on court appointments for half a century. How they managed the feat is the topic of another piece, but before we figure out how this relates to No-Notes Barrett and what to do about her, we need to discuss why they have focused for the last two generations on packing the Court. The first reason is Nixon, and the second is what I’ll term the Blue Shift.
Richard Nixon put four justices on the Supreme Court in five and a half years. Other Presidents were more prolific relative to their time in office. Washington had the whole court of 11 to staff in eight years. Taft managed six in his one term. Lincoln filled five seats in slightly more than four years. The record goes to Harding. Ol’ Winnie somehow managed to get four robes through the Senate in the 29 months he otherwise spent playing cards, writing odes about “Jerry” (Google is not always your friend), getting his 20-something girlfriend up the duff in the Oval Office cloakroom, and then dying in a San Francisco hotel bed next to (of all possible women) his own wife. What makes Nixon’s quartet so special is that they turned on him when he needed them most.
Bucking the President has been a regular dramatic feature of Supreme Court jurisprudence, one that sets us apart from other constitutional democracies. From Marbury v. Madison in 1803 to the Youngstown Steel cases in 1952 to Clinton v. Jones in 1997, the Supremes have directly and fearlessly denied the power of the Executive to overreach the Constitution. What made U.S. v. Nixon special was that it was the judges Nixon himself put on the Court who wrote the opinion forcing his seventh crisis.
The Old Man’s surreptitious Oval Office taping system was revealed, by accident, by one of his assistants in live Congressional testimony during Watergate. In the District of Columbia, in order to be admissible in court as evidence, only one person in the conversation needs to be aware of the recording. So Congress and the special prosecutors subpoenaed his tapes. Tricky spent a year coming up with every possible dodge to avoid answering the subpoena but what the original Law & Order POTUS did not do was hand everything over to Law & Order. Nixon’s refusal was based on a limitless reading of executive privilege.
Eventually it got to the Supreme Court. The question was brutally simple: can the President of the United States assert executive privilege to thwart a request for materials that are demonstrably relevant to a criminal investigation? The context in which the case was argued is worthy of note here: the Department of Justice of the United States of America was litigating a subpoena against the sitting President in front of a Court upon which sat four Justices Nixon had put. How those four jurists reacted to their benefactor’s clearly obstructive if not blatantly criminal intent is important, because it has become the Keyser Soze of right-wing politics for almost half a century, the story old reactionaries tell their kids at night.
The first two justices that Nixon had put on the Court, Warren Burger and Harry Blackmun, had been federal appellate judges for at least a decade before elevation. Burger was a dour, unremarkable conservative, an intellectual underachiever with a night school law degree, whose stolid demeanor and lack of pedigree appealed to Nixon’s loathing of the Establishment. Blackmun, however, was a nerdy Harvard grad complete with Coke-bottle lenses, but Nixon figured the man’s longstanding family relationship with Berger from back in St. Paul would guarantee that they would vote together. They did so less often as the years went on—but when it came to Nixon, the “Minnesota Twins” lived up to the nickname and thumbed their benefactor down in unison.
Nixon’s third appointment, Lewis Powell, was a conservative Southern Democrat who had never been on the bench before. As a high-powered corporate lawyer for four decades, he knew the power of swing votes. He and another centrist, Potter Stewart, wrote the bulk of the opinion’s analysis on the limits of executive privilege, devastating Nixon’s core position.
William Rehnquist’s last job before Nixon put him on the Court had been in John Mitchell’s Justice Department. Rehnquist recused himself from the case immediately, a case of discretion being the better part of valor. This was an ethical no-brainer, but in today’s ethical environment where the only Latin a Republican lawyer knows is “quid pro quo,” it would be seen as betrayal of the man who elevated him from obscurity to the Brethren.
The Supreme Court, 8-0, rejected Nixon’s expansive view of executive privilege and ordered him to turn over the tapes. Nixon resigned within weeks.
What’s important here is how the Republicans, especially the conservative wing of what was once a moderately diverse group of white men, took the ruling. In public most of them lauded the Supreme Court for its courage and its adherence to the founding Constitutional principles that made America great always. Some of them were genuinely happy about the outcome: stalwarts like Barry Goldwater were relieved to see judges succeed in dumping a President who governed as if Congress wasn’t there. But the Nixon underlings who were untouched by Watergate—White House cockroaches like Dick Cheney, Roger Ailes, Roger Stone, and Antonin Scalia—were horrified. The Berger 8 had left the actual limits of presidential authority undefined, which cast a shadow of legal doubt over their beloved Nixon Doctrine, as dictated to David Frost: if the President does it, by definition it cannot be illegal.
To these men and others like them, as well as the thousands of highly educated lickspittles and cryptofascists whom they would recruit over the next decade until they glorified their toady ethos with the name “Federalist Society,” Nixon’s view of executive privilege and presidential authority was as infallible as Papal pronouncements. If Andrey Vyshinsky or Carl Schmitt had been alive and able to read English, they would have sued the Federalists for plagiarizing their work on how to bend a legal system to the will of the leader of the political party in power. From Reagan through Trump, the Federalists placed themselves or their vetted candidates on the Court, beginning with Scalia himself and followed by six Federalist-associated and -approved justices out of the nine appointments by Republican POTUSES. Six of them are sitting now.
Prior to this, there had never been a similar farm program for judges, in either party. The Federalist grooming program is unique in American judicial history, and although they have a lot of precedent they have sworn in broken code to overturn—Roe v. Wade being the obvious—their real target is Nixon (and, ironically, Clinton). The next time a Republican President is called to bat in front of the Nine for telling the legislature and by extension the American people to go fuck themselves, these six implants will find a way to eviscerate Nixon and Clinton, and we will get a President who is truly immune to American justice, royalty in all but name.
The second reason that the Republicans have been running ideological purity tests since Nixon’s downfall on the appellate judiciary—the farm teams from which Supreme Court justices are primarily picked—is what I call the Blue Shift. Historically, justices named by Republicans do one of two things when they are elevated: they gravitate towards the middle or farther left, or they remain steadfastly on the right flank of the Court. It is rare that justices named by Democrats do the opposite. This is because after a couple years of writing the last word on topics, all but the stupidest judges begin to realize that things aren’t as simple as when they were writing law review articles or appellate opinions for a living, and there really is more to the American experience than other people from the same country club your father belonged to.
The Blue Shift drove the Court towards the center-left in the last half of the last century. Brennan, Warren, and Blackmun shifted blue the hardest: named by Eisenhower and Nixon, they wrote some of the landmark liberal decisions of the Sixties through the Eighties, e.g. Miranda and Roe. Potter, Powell, Stevens, and Kennedy, named by four different Republicans, each in turn owned the Court’s coveted swing seat for a half century, allowing the liberal wing to craft piece-by-piece a body of progressive precedent. O’Connor quickly found a liberal but classical line on separation of church and state and stuck with it. In the face of the Moral Majority, Rehnquist wrote Flynt v. Falwell, standing for the proposition that you can mock a man’s piety if he dabbles in politics. Berger’s common-sense views on the Second Amendment could have been written by David Hogg. Powell explained why free speech means burned flags. Kennedy is the reason same-sex couples can get pre-divorced across the country.
But not the Federalists, not in this century. Since the Court handed the White House to Bush in 2000, the only Republican appointments who continued any shift to the left were O’Connor and Kennedy. Rehnquist had fully reverted to his native reptilian form by the end of the Clinton era. O’Connor was replaced by Alito, a man whose sole assigned function, even she has come to realize, is to spray-paint dicks all over her opinions. Kennedy stepped off, for reasons we may yet find out, because Kavanaugh.
There are no more Republican free agents on the Court. Kavanaugh, as discussed earlier, is Justice Gimp Suit. Thomas and Alito are dyed-in-the wool troglodytes whose votes and opinions have the predictability of eclipses. Gorsuch and Roberts are gentlemen savages, capable at times of rulings that appear to favor human beings over moneyed interests, but which do so in a way that will eventually do to this country what you can’t legally do to sheep, even in the Rocky Mountain States.
And now here’s the truth: Amy Coney Barrett is our fault. We put her there. Democrats. In 2013, Barack Obama and Senate Majority Leader Harry Reid (a man who makes the avuncular Chuck Schumer seem as intimidating as Bill the Butcher) were frustrated that Minority Leader McConnell used the filibuster to block every appointment Obama made. Obama and Reid, no doubt advised by a certain former Judiciary Committee Chair from Wilmington, came up with the brilliant idea of cashiering the filibuster for lower court seats, leaving the 60-vote cloture threshold for Supreme Court nominations. They figured, on no evidence whatsoever, that we would keep the Senate, and that when we needed to fill a SCOTUS seat we would simply sweet-talk reasonable ol’ Mitch into cooperating in a bipartisan fashion. McConnell, displaying whatever his species thinks looks like human rage, railed against this choice in the Senate, claiming that the Democrats would regret it.
He was right, of course, but inside of his shell he must have been laughing his cloaca off, because Obama and Co. had just chosen the worst of three options. Had Democrats just done nothing, a Republican Senate would have been unable over standing filibuster rules to force through hostile judicial nominations under future GOP Administrations. Had Reid nuked the filibuster entirely, Obama could have taken one look at Ginsberg’s cancer history—at the time already 15 years long—and told her to enjoy the next decade of life at the opera at full pay while he found a younger and healthier version of her to cram onto the court ASAP.
Of course, what we did was this: We tore up the lower court filibuster, still deceiving ourselves in the process that the Republicans would appreciate the gesture like gentlemen and respond in sportsmanlike kind, and started to load the lower courts. That lasted for about a nanosecond, until the Republicans took the Senate and blocked Garland when Scalia died.
When Trump was elected, McConnell honored his promise to fuck us bloody, ripped up the filibuster for the Supremes, and rammed Gorsuch through the chamber like a nuclear torpedo, showing everyone how a real man abuses power. Suddenly the whole country started looking over RBG’s oncologist’s shoulder and tweeting about how strong she looked the last time she came back from Walter Reed, because as far back as the mid-2000s people who watch the Court were hearing about this fresh-faced baby-magnet from the Midwest the Republicans were putting on deck.
We knew what was coming.
Unlike us, the other side knows that they are at war, so they are actually organized to win. They knew Ginsberg might outlive Trump’s first term, so a string was pulled on Kennedy’s robe and we got Kavanaugh: compromised, corrupt, conscience-free. Only when RBG passed away within weeks of the election did Barrett get the nod. Sure, she was there partially to secure the majority, but mostly to give McConnell the final “fuck you” to the history books. As my American History teacher used to say: Hiroshima won the war, but Nagasaki was to make sure nobody missed the lesson.
But yet, Barrett is also an unknown quantity to the red-hats. She is, to quote Taylor Swift, a blank slate. If she had been as institutionally reliable as Kavanaugh, they would have put her in for Kennedy. Photogenic, scandal-free, surrounded by more kids than Barney the Dinosaur, living her Jesusian ideals, she would have sailed easily through a process the pigs knew they had the votes for. Instead, they ran Kavanaugh, knowing that he would be a month of bad television followed by a Biblical flood in the midterms. He was the better bet to the enemy. They don’t trust her much more than we do.
The question then is whither Amy Coney Barrett? Will she plant her feet firmly where she appears comfortable, handmaid for the colonels, giving us chirpy opinions on how the full rights of religious freedom guaranteed under the Constitution not only allow but in fact require full exercise of those religions’ pet prejudices? Or will she slowly look to Sotomayor and Kagan for examples on how to write with the true insight we have come to expect of the few women ever to sit on the panel—if not with the fire of Ginsberg, then with the calmly instructive tones of O’Connor?
Against my better pessimistic instincts, I am hoping for the latter. We have decades to find out.
Photo credit: Rachel Malehorn. Amy Coney Barrett in 2018.