Riled By Politics: The Fate of the U.S. Supreme Court & The Constitution

(Special Report/Special Edition)

Politics had become the possession of a regime, not an establishment, and there was no role for him, unless he were somehow to create a new one.

– Anthony Everitt, Cicero: The Life and Times of Rome’s Greatest Politician, p. 233

Political discourse has turned acrimonious at the federal level. America’s constitutionally instituted branches are demonstrating immense wear against present social and economic pressures. The latest comes at the wake of Justice Ginsburg’s death this past Friday September 18, 2020 within months of the presidential primary election between incumbent President Donald John Trump and potential candidate elect Joseph Robinette Biden Jr. Yet the U.S. government also faces internal uncertainty as the government grows far and wide beyond the Constitution and the rule of law.

He Said, She Said

Reported by the The Annenberg Public Policy Center’s Fact Check, Joe Biden has blundered on multiple occasions since the passing of Justice Ginsburg¹:

• Biden falsely claimed that “there’s no court session between now and the end of this election.” The next Supreme Court session begins Oct. 5, nearly a full month before Election Day.
• Biden said, “I think the fastest justice ever confirmed was 47 days.” That’s false; since 1975, the shortest time from formal nomination to confirmation was 19 days. 
• Biden exaggerated when he said that 30% to 40% of Americans “will have voted by Oct. 1.” His campaign later told us he meant by Nov. 1 — two days before Election Day.
• He also wrongly claimed the Trump campaign asked him to release a list of potential Supreme Court picks “only after” Ginsburg’s passing. President Donald Trump and his campaign had called on Biden to produce such a list prior to her death.

Democrats fervor over the potential SCOTUS nominee selected by President Trump as Senator Chuck Schumer and Representative Alexandria Ocasio-Cortez take to the podium to announce their dismay that the President would dare to defy Justice Ginsburg’s last wish that no nominee be chosen until after the election²:

Senator Schumer: She was an amazing woman. So, the first reason we’re here is unity, and the second is to honor her legacy, to demand that her last wish be fulfilled by the Senate… But the third reason we’re here is the most important of all. So many people’s rights are at stake in this election. The right of people to health care. The President is pursuing a policy which would get rid of all protections for preexisting conditions, which would take healthcare away from 7 million people, and he will appoint a justice that will enact that in the Supreme court case that is due only a few weeks after election day. We are here to protect the rights of women, their rights to their own body, their rights to choose, their rights to healthcare, their rights to equality would all go down the drain if that wish were not realized. We’re here to protect the rights of working people.

Representative Alexandria Ocasio-Cortez: So, we need to make sure that we mobilize on an unprecedented scale to ensure that this vacancy is reserved for the next president. We must use every tool at our disposal, from everyday people, especially in swing states. We need everyday people to call on senators, to call on folks on the bubble to call Republican senators, to make sure that they hold this vacancy open. We must also commit to using every procedural tool available to us, to ensure that we buy ourselves the time necessary. We must commit to allowing and to considering and to utilizing every single procedural tool available to us, again, to buy that time. We need to make sure that we realize and fight this fight with the weight of every person who sacrificed for voting rights, every person who sacrificed their wellbeing and their lives to make sure that they could marry whomever they love, to make sure that they can live freely and safely in a workplace, to make sure that they can live in this country and make sure that dreamers can stay in this country, and that families can have the path to citizenship that they deserve.

Here for a complete transcript.

Strong claims considering that the U.S. Supreme Court is not a political institution that merely overturns politically “left” or “right” hot button issues such as abortion, healthcare, and voting rights anymore than the second amendment, religious freedom, or property rights. It is an institution of law and justice; a constitutional interpreter not a maker of statutory laws (though it does review congressional statutes and offer legal remedies per a Constitutional relationship), but nothing happens until a real living case is brought before the Court which has often gone through the rigors of a Federal or State Court and an Appellate Court. Even if a case makes it through the system, rarely does a case reach the Supreme Court for as few as 100 to 150 cases are heard each session out of the thousands of certiorari asking for the ear of the nation’s highest court. That’s real talk. Nothing political about its intended functionality. Egregiously what made this institution malfeasant are the political parties themselves.

In 1995 the Presidential Studies Quarterly published an article by attorney Michael A. Kahn titled, The Appointment of a Supreme Court Justice: A Political Process from Beginning to End.³ Kahn’s main argument was that the Supreme Court justices have always been appointed for political reasons throughout America’s developing history. Judge Robert Bork was not the first appointee to be denied by the Senate either:

In 1881, President Hayes’ nomination of Stanley Matthews met this fate; and, in 1930 Judge John Parker was rejected because his political views were unacceptable to the Senate. The Parker Senate fight was every bit as political and nasty as the Bork fight and the vote in the Senate was even closer.⁴

Hayes nominated Matthews on January 26, 1881 only for the Senate to never take action until President James A. Garfield renominated Matthews on May 12, 1881 who was confirmed by the Senate May 17 that same year.⁵ Although Matthews would only live eight more years, passing at the age of sixty-four, he did become a Supreme Court Justice unlike Judge Bork.

Robert Bork, nominated by President Reagan on July 31, 1987, nomination hearing took place in October 1987. Perhaps the most intellectually informative nomination hearing ever recorded, Bork openly explained his legal philosophy for the Senate. Sen. Ted Kennedy, who had been leading the front against Bork⁶ (very similar to AOC and Schumer today), during that hearing said:

In Robert Borks America there is no room at the inn for blacks and no place in the Constitution for women and in our America there should be no seat on the Supreme Court for Robert Bork.⁷

For a complete reading of Bork hearings.

For Part 1 and Part 2 of Day 1 of hearings by video.

Hyperboles are not new to American politics from either political party. After the Courts famous conservative Justice Antonin Scalia passed away unexpectedly, President Obama was preparing to nominate Merrick Garland but Republican Senator Mitch McConnell responded with the “Biden Rule” going on to say:

The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction…The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next President may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.⁸

Whatever the reasoning the American people have little say in the nomination process if any at all. Nevertheless the political ploy worked in 2016 for Republicans who mirrored a consistent message that the nation was in dire straits, the American people had a voice, and the Senate must wait until after the election to selected a new Supreme Court justice.⁹

Professors Bryon J. Moraski and Charles R. Shipan published in the American Journal of Political Science, The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices (1999).¹⁰ In their 27 page study they demonstrate the varying limitations a President has in nominating their selected choice for the Supreme Court. Two limitations have historically prevented a nomination: 1) Ideologically the candidate is out of step with the Senate; or 2) The candidate is less-qualified.¹¹ Everything comes down to the attitude of the Senate, “Whether the Senate constrains the president, however, depends on the configuration of institutional preferences… there are three distinct regimes, and which variables affect the position of the nominee depends on which regime exists.”¹²

According to Moraski and Shipan there are three regimes: 1) Unconstrained President; 2) Semi-Constrained President; 3) Fully Constrained President.¹³ The President unsurprisingly has the most control under Category 1, Category 2 the Senate’s indifference has a greater impact, and in Category 3 the median of the Court affects the Senate’s decision-making.¹⁴ The Supreme Courts median was measured by the voting score on civil liberties from the Court’s previous term.¹⁵

During the 2018 nomination of Brett Kavanaugh, whom the Senate voted down political lines 51 yeas, 49 nays, President Trump was replacing the retiring Justice Anthony Kennedy. Kennedy remained a conservative justice throughout his career while moving liberal overtime on big key issues (e.g. gay marriage) but hardly the moderate he was proclaimed to be.¹⁶ Kavanaugh has been portrayed as far-right and more recently a “man in the middle.”¹⁷ His track record shows a mild lean to the right while voting most consistently with Justice Roberts 95% of the time and Justice Breyer at 86%.¹⁸ A record that I suspect will continue, making Kavanaugh likely a Chief Justice in the making who, like Chief Justice Roberts, is concerned more about the institutional stability of the Court over their own ideological leanings.

The Regime

In Cicero’s time the regime was Julius Caesar, Pompey, and Marcus Licinius Crassus; military men set on taking Rome. While modern America is layered in partisan politics with Democrats moving further to the left and Republicans growing stagnant¹⁹ underneath is a real Deep State (not Trumps Deep State) but a nexus of Private-Public institutions including corporations, national security agencies, military networks, and financial powers all too big to fail due to their interconnectedness in maintaining a global economy.²⁰ As Nero fiddles while Rome burns the U.S. Supreme Court dwindles right along with the U.S. Constitution.

Perplexingly democrats have argued for decades against the rise of corporations in government while republicans rage against the increasing size of government; the politically left and right having written hundreds of books between them concerning the alarming demise of our government, our liberties, our constitution but neither party nor the ideologues seem willing to actually acknowledge the elephant in the room that is Deep State in its entirety. Wall Street to Main Street progressives voice all the while Amazon, Google, Facebook, and dozens of multinational corporations enforce “anti-racism” training, censor their workers and the public, and commoditize data, information, and knowledge of millions outside the purview of average Americans. While conservatives rail against the U.S. government for spying on every American they push for the next war with Iran, North Korea, or Russia. Granted both parties support war when it is politically savvy.

Crumbling beneath their feet is the very structure that provides them existence, hardly unaware rather perhaps most keen to the situation, the U.S. Supreme Court holds on tightly.

Now with alarming rhetoric the nation once again is told that the future stands or falls on the nomination of a justice and of a president. At the RBG Vigil one speaker exclaimed that healthcare, economic rights, reproductive rights, women’s rights… everything is at stake this year.²¹ Yes, the election is important. No two candidates could be more different, the established parties hold very different visions for the United States. But the historical ignorance displayed by both sides of the political aisle is abysmal. Their partisan attitude damages an already weakened system.

Unless the old Washington establishment can muster enough of a push against the partisanship there is little hope that they will address the political mangling taking place in our nation today. Richard Allen Epstein, legal scholar and professor made famous by Biden during the nomination process of Clarence Thomas, has been warning for over a decade against the Administrative State that started to rise during Franklin Roosevelt’s New Deal. A “fourth branch” of government the administrative state today is a conglomerate of agencies that have their own laws, courts, powers, and authority. Congress pushed away their responsibility and the responsibility of the States by creating agency after agency. Epstein warns that the very rule of law itself is weakened by this structure:

As I have made clear on many occasions, I do not accept, even today, this vision of the administrative state. First, I do not think that it is possible to shield administrative agencies in highly sensitive areas from various forms of factional and political influence that have little or nothing to do with technical expertise. These risks are, if anything, increased once it is possible to select persons exclusively for their views on a single topic. Now all interested parties can hone in on single issues in selecting key administrative officials. Unlike the situation in choosing people for courts of general jurisdiction, these parties need not be slowed down by worrying whether their favored candidates on one issue will disappoint them on a second. Stated otherwise, expertise is an overrated virtue, while the risk of political capture by interest groups and the discord that faction produces is an underappreciated vice.²²

And in The Atlantic last year while promoting his new book, The Dubious Morality of Modern Administrative Law (2020), Epstein writes:

The administrative state, of course, is not unconstitutional in all its manifestations. The large and sophisticated corpus of 19th-century administrative law offers us a benchmark by which we can evaluate post–New Deal developments. The success of that body of law depended heavily on the limited mission that it was asked to discharge, given its deep respect for both the doctrine of federal enumerated powers and a relatively robust conception of property and contract rights. But the New Deal expansion of the constitutional order has failed, as I argue in my new book, The Dubious Morality of the Modern Administrative State. To understand the extent and character of that failure, look only to what administrative law now allows: excessive government discretion to implement vast statutory schemes, many of which impose overbroad controls in such critical areas as environmental, labor, and food and drug laws.²³

America’s fourth branch is now in line with its fifth branch, the National Security State²⁴ completing a globalized out of control Deep State. How can America’s constitutionally established third branch truly function when it and our nations founding document are overridden by a network larger and more powerful than ever intended? Reviewing Professor of International law at The Fletcher School of Law and Diplomacy at Tufts University Michael J. Glennon’s book, National Security and Double Government (2014), CATO Institute’s Gene Healy explains “that the national security state has become a runaway train and that presidential elections are contests that determine who gets to pretend he’s driving.”²⁵

Congress must put away the pettiness but that is too much to hope for at a time when the President can either do no wrong or no right; when radicals burn down cities in the name of a movement whose real aims are to overthrow an entire social structure rather than reform a broken system; when threats of adding more seats to the Court are made; and Cultural Marxism takes center stage.

Today America needs statesmen not men of the state. We can only pray that one will rise to the occasion.

Sources

¹ Gore, D’Angelo., Kiely, Eugene. (21 September, 2020). Biden’s False and Exaggerated Supreme Court Claims. https://www.factcheck.org/2020/09/bidens-false-and-exaggerated-supreme-court-claims/

² The Hill. (20 September, 2020). AOC says NOTHING IS OFF THE TABLE to ensure Supreme Court seat is filled by next president. YouTube. (Video). https://www.youtube.com/watch?v=yk2ba4LONXY&ab_channel=TheHill

³ Kahn, M. (1995). The Appointment of a Supreme Court Justice: A Political Process from Beginning to End. Presidential Studies Quarterly, 25(1), 25-41. Retrieved September 22, 2020, from http://www.jstor.org/stable/27551374

⁴ Ibid, p. 26.

⁵ The Supreme Court Historical Society. Stanley Matthews, 1881-1889. https://supremecourthistory.org/timeline_matthews.html

⁶ Reston, James. (5 July, 1987). Washington; Kennedy And Bork. New York Times. https://www.nytimes.com/1987/07/05/opinion/washington-kennedy-and-bork.html

⁷ ABC News. Kennedy Mounts Ideological Attack on Bork. (Video). YouTube. https://www.youtube.com/watch?v=GvFLXFCJvJA&ab_channel=ABCNews

⁸ McConnell, Mitch. (16 March, 2016). McConnell On Supreme Court Nomination. Mitch McConnell Senate Majority Leader. https://www.republicanleader.senate.gov/newsroom/remarks/mcconnell-on-supreme-court-nomination

⁹ Desjardins, Lisa. (22 September, 2020). What every Republican senator has said about filling a Supreme Court vacancy in an election year. PBS News Hour. https://www.pbs.org/newshour/politics/what-every-republican-senator-has-said-about-filling-a-supreme-court-vacancy-in-an-election-year

¹⁰ Moraski, B., & Shipan, C. (1999). The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices. American Journal of Political Science, 43(4), 1069-1095. doi:10.2307/2991818

¹¹ Ibid, p. 1070

¹² Ibid, p. 1074

13 Ibid, p. 1075

¹⁴ Ibid, p. 1085

¹⁵ Ibid, p. 1079

¹⁶ DeVeaux, Amelia. (3 July, 2018). Justice Kennedy Wasn’t A Moderate. FiveThirtyEight. https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

¹⁷ Stohr, Greg. (23 September, 2020). Kavanaugh Emerges as Man-in-the-Middle With Supreme Court Set to Shift Right. Bloomberg/Quint. https://www.bloombergquint.com/politics/kavanaugh-emerges-as-unlikely-liberal-hope-for-court-swing-vote

¹⁸ Feldman, Adam. (3 April, 2019) Empirical SCOTUS: Is Kavanaugh as conservative as expected? SCOTUSblog. https://www.scotusblog.com/2019/04/empirical-scotus-is-kavanaugh-as-conservative-as-expected/

¹⁹ Richey, Edward K. (1 September, 2020). Welcome to the Party: America’s Established Political Parties By Race. Edward Kyle Richey. (Blog). Truth In Focus. https://edwardkylerichey.org/2020/09/01/welcome-to-the-party-americas-established-political-parties-by-race/

²⁰ Lofgren, Mike. (21 February, 2014). Essay: Anatomy of the Deep State. Moyers On Democracy. https://billmoyers.com/2014/02/21/anatomy-of-the-deep-state/

²¹ Now This Politics. (19 September, 2020). RBG Vigil. (Video). Facebook. https://www.facebook.com/NowThisPolitics/videos/vb.908009612563863/2671486516401954/?type=2&theater

²² Epstein, Richard. (2008). Why the Modern Administrative State Is Inconsistent with the Rule of Law. New York University Journal of Law and Liberty, 491-515; 492 cite. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2355&context=journal_articles

²³ Epstein, Richard. (20 October, 2019) How Bad Constitutional Law Leads to Bad Economic Regulations. The Atlantic. https://www.theatlantic.com/ideas/archive/2019/10/how-bad-constitutional-law-leads-bad-regulations/600280/

²⁴ Kaizen, Michael. (Fall 2017). The Rise of the Security State: From the Great War to Snowden. Dissent Magazine. https://www.dissentmagazine.org/article/world-war-i-aftermath-security-state-nsa

²⁵ Healy, Gene. (1 March, 2015). National Security State. (Book Review) National Security and Double Government By Michael J. Glennon. https://www.cato.org/publications/commentary/national-security-state