Supreme Politics

February 24, 2022

Cathedral City, California

     Let's talk about the Supreme Court of the U.S.  I'll dignify that rather flaccid group by capitalizing its name, although it probably doesn't deserve such respect at the moment.   The constitution gives the president the authority to appoint justices to the Supreme Court, but the Senate must agree to allow the appointments to go into effect.  Since no one has much of a sense of the history of the country or of the Supreme Court, and since the news media love nothing more than to sensationalize things and foretell the doom of the nation, today it's sort of assumed that the bunch currently comprising that body is uniquely politicized, just as the country itself is aware of its own increasing political polarization.  There persists a myth, or perhaps more accurately a misunderstanding, regarding the political neutrality of the Supreme Court.  In fact, it is indeed highly political, and has been ever since the inception of the country, but particularly since the beginning of the 1800s, when party politics really began to heat up.  

     Before getting more into that aspect of the Court, let's take a look at its current makeup.  In the days of yore, when George Washington and his early successors were appointing justices, the country was run solidly by white Anglo-Saxon Protestants, save for a Catholic or two, usually from Maryland, which before it was a state was a British Catholic colony.  Such was the case with the Supreme Court, which didn't acquire its first Catholic justice, in the person of Roger Taney (from Maryland of course), until 1836.  Taney died in 1864, and another Catholic didn't come along until about thirty years later, but a tradition of sorts then evolved to reserve at least one seat for a Catholic.  Not long after the turn of the century, in 1916, the Court got its first Jewish justice, Louis Brandeis, and thereafter for most of the 20th century there have usually been one or more Jews on the Supreme Court.  

     Fast forward.  Today's Supreme Court is a far cry from the bewigged gaggle of WASPs who first inhabited it.  Protestants?  Well, I think there's one, Neil Gorsuch, although it appears that he started life as a Catholic but seems to prefer to be an Episcopalian now.  There are two Jews left after the demise of Ruth Ginsberg--Elena Kagan and Steven Breyer--although the latter is soon to depart from the court.  There is at present one African American justice, Clarence Thomas, who filled the "Black" seat on the Court after the death of Thurgood Marshall.  Soon there will be another African American, a woman, whose religion I don't know at this point.  It appears that of the top three likely candidates for nomination to succeed Breyer, one had a Jewish father but hasn't revealed her own religion, another is married to a Jewish man but might be Protestant herself, and the third is Catholic.  After all that shakes out, the breakdown of the Court will be as follows: six Republicans and three Democrats; five men and four women; seven whites, one Latina, and two African Americans; and seven or eight Christians and one or two Jewish persons, including six or seven Catholics, one or two Protestants, and one or two Jews.  It'll be a complex group demographically, and never before has the Court been quite this far away from its initial WASPishness, which on a stand-alone basis seems like it might be a good thing.

     You might well ask why it matters in the least what the religions of the Supreme Court justices are in a nominally secular nation, and most of the time you'd be right.  Who gives a shit about their religion, or whether they are religious at all?  Roger Taney, the first Catholic (pictured above), was a nasty and vehement racist and slaveholder, who gave us the Dred Scott decision, containing one of the most blatant manifestos of white supremacy ever to emanate from the Court.  In it he declared that a black person had no rights that needed to be respected by any white person.  But most of his fellow justices were slave holders, too, and went along.  The Catholic justices who followed Taney were a mixed bag.  Until very recently, that is.  Most of today's Catholic justices have been carefully chosen by their appointers (the two George Bushes and Donald Trump) not to increase religious diversity, but rather to decrease it, because their conservative Catholicism influences their political thinking in a rightward direction.  This is not to say that Catholics in the U.S. on the whole are Republicans; statistics indicate that they're split pretty evenly between the two parties.  But today's members of the conservative bloc, all Catholics save for the high church semi-Catholic Neil Gorsuch, are meaningful partly because they were selected based not only on the basis of their Republican political conservatism but also on the assumption that since they are Catholics they will oppose abortion rights, will support public spending for conservative parochial schools, will uphold discrimination against gays in the name of freedom of speech, and generally will erode the separation of church and state in as many ways as possible.  All of these things are coming to pass, thanks to that Catholic conservative bloc.  It would have been just about the same if the Bushes and Trump had appointed right-wing evangelical Protestants instead of Catholics, except that evangelicals on the whole aren't as intelligent or well-educated enough to become federal justices.  There is, to be fair, one lonely liberal Catholic on the court too, in the person of Sonia Sotomayor.

     Which brings us back to the inherently political nature of the Supreme Court.  Many people inadvertently confuse the nominally neutral role of judges at the lower levels of state courts with judges who are appointees to the federal bench by the President.  That's understandable.  When you're facing a judge in an ordinary courtroom, you are entitled to expect that judge to at least appear to be fair and impartial (even though many are not), and not to impose their political agenda on you, whether you're a prosecutor, a criminal defendant, or a civil litigant on either side.  The personal politics of the judge should not enter into whether you get a fair trial at that level, and if it does, that judge might be accused of committing some reversible error, the one thing lower court judges fear the most, because it's a sort of a rebuke to their competence and marks them as fair game for appeals from then on, not to mention limiting their chances of upward mobility.

     Now let's look at the federal judiciary, by contrast.  Because federal judges at all levels (district courts, circuit courts of appeal, and the Supreme Court) are appointed by the President or someone working for the president, and approved by the Senate, it is not merely by chance that they are usually of the same political party as the President is, or at least not significantly opposed to that President's politics.  And there are hundreds of federal judges--870 as of now.  Once on the bench, federal judges are there for life, so long as they behave themselves.  Their big boss is the Chief Justice of the United States, but they may be impeached by the Congress, just as a president may be.

     At the district court level federal judges are trial judges, just like their state counterparts.  But at the appellate and Supreme Court levels they do not retry cases on the merits, except for the Supreme Court in very limited circumstances.  Instead, they review lower court decisions and decide whether some federal (and hence constitutional) issue needs to be addressed.  However, they are all thoroughly political, especially the justices of the Supreme Court.  They wouldn't be there if they weren't, because no President with his wits about him would squander the chance to put his imprimatur on the Court by appointing someone who didn't think like he did, at least in broad terms.  Because federal judges are appointed for life, the one thing a President may do that will ensure his or her political legacy long into the future is to appoint federal judges and Supreme Court justices.  Other executive actions can be undone by successors, but the appointment of judges and justices cannot.  Donald Trump's single most nefarious accomplishment while president was getting three extremely conservative justices onto the Supreme Court, and they could well live for another thirty years before the Devil calls them home.  

     Again, this isn't new.  Thomas Jefferson was the first president this country had who would, in today's politics, be considered a Republican, although he was counted as a Democrat until very recently. (The labels hadn't been exactly settled on back then, but there were Federalists, like Washington and the Adamses, and their opponents, the Jeffersonians).  Why would Jefferson be a Republican today?  Well, for starters he was an avowed white supremacist and a profound hypocrite, as most Republicans are.  While eloquently declaring for the basic rights and equality of all persons, he owned hundreds of slaves, and forced one of them to be his concubine when she was about 14 years old, showing her off in Europe as he courted the French.  She soon got pregnant and ultimately gave him six more slaves.  (By the way, the aforementioned woman, Sally Hemings, happened to be Jefferson's late wife's half sister--in other words, Jefferson's father-in-law had sired her with one of his own slaves.)  Even though as president he signed a law banning the U.S. involvement in the international slave trade, at the time of his death he freed only about ten of his own--those with the cherished Jefferson blood coursing through their veins.  Also, he was in favor of the rights of individual states over the federal government (a perennial guise for pro-slavery and white supremacy, and a staple of the Republican party of today).  State's rights eventually led to the Civil War and since then has been the excuse that former slave states have used to perpetuate the suppression of minorities.  He also favored tax reductions, primarily to benefit the already wealthy, like him, another favorite Republican hobby horse.  Jefferson nevertheless gets high marks for his "forward thinking" and for being a brilliant and verbally nimble Renaissance man.  This forward thinking included his purchase of the French claim over the middle third of what is now the United States, enabling the spread of slavery and the forcible removal of east coast Indians to west of the Mississippi.     

     But the bane of Thomas Jefferson's existence during his eight-year presidency was the domination of the Supreme Court by independent and judicially-active Federalists appointed by Washington and John Adams, headed up by Chief Justice John Marshall, who, in 1803, established that the Supreme Court was completely independent from any sitting president and, moreover, was the ultimate authority on what was, and was not, constitutional.  Until then, that hadn't been quite clear, and Jefferson really didn't care for the idea.  While Jefferson did get three of his boys onto the court, he didn't have the majority of Republicans he would have wished for.  It wasn't until thirty years after Jefferson, when Andrew Jackson took office, that the Supreme Court was altered for good and filled with men even more roguish than the self-aggrandizing Jefferson would have chosen.

     Occasionally, nevertheless, the Supreme Court of today surprises even those who favor the politics of its majority.  Donald Trump found out, to his dismay, that he didn't own them, when they turned down, for the most part without comment, his sore-loser claims regarding the 2020 election.  But that was more a matter of repelling Trump's outright idiocy than it was of rejecting his basic Republican political views.  In related areas, such as allowing states to suppress voting rights and abortion rights, the Court will even things out for Trump and his followers in the coming months and years.

     In conclusion, lest anyone think for a moment that the Supreme Court of 2022 is overly politicized, bear in mind that there has never been a time in the history of the country when the politics of that august body has not been overwhelmingly in evidence, from the upholding of slavery and segregation, to the suppression of immigration, to the dismantling of the New Deal, to the enhancement of civil rights and the rights of criminal defendants, to the legalization of abortion and gay marriage, to the restriction of affirmative action, to the upholding of corporate rights, to the tearing down of the wall of separation between church and state.  Those of us who grew up in the days of the Earl Warren court were happy enough with its liberal decisions, even when presidents were not.  Today, barring a quick series of untimely deaths within the conservative majority, we will be living with some unhappy constitutional interpretations for the foreseeable future.