The Supreme Court Is Illegitimate.
Their decisions have long stopped having any basis in law, and the Constitution and facts are twisted to fit the far-right majority's political positions.
The premise of the 5-4 podcast is how bad the Supreme Court is, and how they’ve always been political. We don’t teach it that way in civics classes in high school, or political science courses in college, but it is a correct sentiment. I majored in political science and took several legal classes for my degree, including constitutional law, so I can approach this topic reasonably informed. Article III is the text in the Constitution that establishes the Supreme Court and vests their authority to serve as the ultimate appellate body for cases. The types of cases they can review are, shall we say, vaguely defined. Section 2 reads, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
The boldfaced part is mine, as it is the only text that waves at the idea that the Supreme Court can overturn any laws it deems unconstitutional. It was broad language, and Marbury v. Madison, the foundational case of the Court’s “legitimacy,” was built on Chief Justice John Marshall’s desire to establish their right of judicial review. Marshall was a politician first (he was John Adams’ Secretary of State), and therefore, when Marbury v. Madison was brought to the Court, with one party being the Secretary of State (James Madison), Marshall had the perfect case on which to build the third branch’s power base. It is no small irony that the case itself hinged on the following actions:
John Adams, with two days remaining in his term, made several dozen last-second judicial appointments to lower-court positions established in the 1789 Judiciary Act. These were quickly confirmed by his senatorial allies in hopes of stymying incoming President Thomas Jefferson’s agenda.
Upon taking office, Jefferson ordered Madison to refuse to deliver the commissions for any remaining appointments of Adams’ that Marshall had been unable to complete before the end of the administration. Jefferson’s legal position was that they were invalid.
One of the judges who had not received their commission, William Marbury, sued Madison demanding he be seated on the federal circuit court.
Marshall, writing for the Court, took a case with a narrow scope (should the Secretary of State have to deliver judicial commissions issued by the prior administration) and blasted it open into a much larger scope. The decision proceeded to say that Marbury was in the right, and the Court had the authority to order Madison to comply, but the Court would not do so in this case. The part where Marshall performed an act of legal chutzpah was how he decided that Section 13 of the 1789 Judiciary Act (written by Congress to more clearly define Article III, Section II and create the necessary lower courts) was unconstitutional because it expanded the Supreme Court’s power beyond what was in the text of the Constitution; however, the opinion in which the Court decreed this was itself derived from the power of the Act they were overturning. To put this in more concise terms, the Supreme Court used the authority of a law it ruled unconstitutional to decide that the law was unconstitutional. It was remarkable for its legal gymnastics, and set the standard by which the modern Court would turn themselves into pretzels to justify their decisions.
While I could go on for days about bad Supreme Court decisions, the ones I am going to tackle are those of a more recent nature. This will probably run long—I will try to be concise—and I hope you, as readers, do not become bored. These are the ones that have seriously undermined the legitimacy of our institutions, our rights, and the law itself. That is a serious charge and the evidence sustains it. The 5-4 podcasters (lawyers all), for example, repeatedly say that one of the most infuriating things is that the liberal justices never question the motives of the right-wing justices, but that same respect is never reciprocated, especially when the right-wing justices are the ones twisting facts to suit their motives.
So, let us begin….
Bush v. Gore, (2000) — This case is infamous in the annals of American history and law, because the Supreme Court (shockingly with the acquiescence of Sandra Day O’Connor, who had been one of the most honest justices in the minds of many) decided a presidential election. The 5-4 majority opinion, authored by Chief Justice William Rehnquist, knew they were usurping a function they had no business taking, because they wrote that no precedent should be taken from this decision and the opinion applied only to this case and no others.
A brief refresher on facts: Florida was hotly contested between Al Gore and George W. Bush in the 2000 election. Networks called for Gore, retracted, then called for Bush and retracted. There was a ludicrous amount of incompetence (Palm Beach County’s ballot design), state malfeasance (Bush’s brother was governor and appointed the Secretary of State, Katharine Harris, that illegally purged 50,000 Black voters), and a legal process that was haphazard. A recount was mandated by Florida law because the margin was incredibly close. At the end of initial counting, Bush was up 1,700 votes. The first recount by machine lowered it to approximately a 300 vote lead. Gore’s lawyers sued, asking for four populous Democratic counties to get hand recounts. Bush’s team objected, and instigated the “Brooks Brothers Riot” at the Miami-Dade elections offices, with future Supreme Court Justice Brett Kavanaugh and Trump hack Roger Stone helping coordinate.
This disruption of counting made it impossible for Miami-Dade to finish in time to meet the “safe harbor” provision for electoral votes found in U.S. law. The Florida Supreme Court was ready to grant an exception given the circumstances, and Bush’s team appealed to SCOTUS. What came next is truly astonishing.
There were numerous ways that this situation could have been handled. Gore’s team badly miscalculated by asking for the partial recount, giving the exercise an air of partisanship and a wedge for the Bush team to end the whole thing. A full hand recount should have been ordered by the Florida Supreme Court, which would have removed any appeal to SCOTUS about equal protection. Barring all that, had Florida said it could not certify any electors in the time required by law, then neither man would have the required electoral votes to win, and the House of Representatives would have decided. The House delegations broke down in the GOP’s favor—28 GOP delegations, 18 Democratic delegations, and four ties. Only 26 was required to get elected, and it would’ve been constitutional, while still giving Bush his victory.
Instead, the Court wrote a convoluted opinion that decided the election, the worst of both worlds. The dissent by Justice Ginsburg noted how the conservative majority time and time again argued for states’ rights, but when the state court’s decision went against their personal political desires, they decided that it violated the Constitution. However, if it violated the Constitution, why did the majority go to such great lengths to declare it was only valid in this particular instance?
There were no good solutions here; however, the Court should’ve refused and the matter should either have ended with a full recount in Florida, by hand, of all votes, or Florida should’ve punted the election to the House, which the Constitution explicitly allows, and Bush still wins in that scenario. Instead we get this garbage decision.
D.C. v. Heller (2008)—This gem, authored by Antonin Scalia, opened the floodgates for terrible rulings that basically prevent any sort of gun control from taking place. It was the basis for the absolutely awful ruling in Caetano v. Massachusetts (2016), and it comes about not because of “originalism” (a term that was made up by the Federalist Society to supposedly mean interpreting the text as the Founders would have, except that they conveniently ditch it when it fits their needs), but instead the modern gun-rights movement sponsored by the ghouls at the National Rifle Association (burn in hell, Wayne LaPierre!).
The majority opinion in this case demonstrates what a joke “originalism” or its sibling “textualism” is. For the first 150 years of America, the Supreme Court treated the Second Amendment the way most sane people do—it’s meant to apply to local government militias, not every random twit who has a fetish for firearms. The first major case post-Civil War was Cruickshank v. United States (1875), where the Court ruled that the Second Amendment “…means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Eleven years later was Presser v. Illinois (1886), when the Court ruled the Second Amendment does not guarantee the right of private militias to form, a ruling that personally should’ve been enforced with more alacrity, in my view. United States v. Miller (1939) was over the ability to carry sawed-off shotguns, which the Court ruled was quite within the purview of the government to ban, since no reasonable relationship to military use could be demonstrated for it. United States v. Warin (1976) was not taken up by the Court, who allowed the Sixth Circuit ruling to stand. The Sixth Circuit explicitly wrote, “It is clear that the Second Amendment guarantees a collective rather than an individual right. In Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971), this court held, in a case challenging the constitutionality of 18 U.S.C. App. § 1202(a)(1): Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.”
Pretty clear language, right? 1976. The 200th birthday of America. The consensus of the courts for over a century was that the Second Amendment was not a free-for-all, and the supposed “originalist” Antonin Scalia just bulldozed 130 years of precedent to create an unfettered individual right to own any weapon for self-defense. Scalia was also part of the per curiam decision handed down in Caetano a month after his death, which stated “The Court has held that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, and that this Second Amendment right is fully applicable to the States.”
Who cares about the lives of thousands of children killed in school shootings and other random acts of violence? The Supreme Court has a gun industry to support!
Citizens United v. Federal Election Commission (2010)—Commonly known as the “corporations are people” case, the Roberts Court began its systematic dismantling of fair and free elections with this decision. In a, you guessed it, 5-4 decision, the majority opinion authored by the Chief Justice declared that any restraint on corporate spending was a bar to free speech, and thereby unconstitutional. The dissent was written by Justice Stevens, and the sixty pages that follows is a great history of the actual legal precedents involved in corporations being treated differently.
A fun fact about this case was after the original hearing, Justice David Souter, who had just announced his retirement, saw the original Roberts opinion and was so outraged by the blatant politics behind it that he authored a scathing dissent that reportedly included detailed information about Roberts breaking the Court’s own rules to engineer an opinion at odds with the Court’s own precedents, many of which Souter had established. To avoid being outed as a charlatan, Roberts scheduled it for rehearing the following term. Stevens was more of a gentleman about it, but accurately noted at the start of his dissent:
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned.” All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.
A grossly political decision, reached for the benefit of allowing wealthy donors to do as they pleased. It also made it far, far easier for foreign entities to funnel dark money into elections. One of the most blatant incidents that came after this case was in 2018, when Speaker of the House Paul Ryan introduced billionaire Sheldon Adelson to the director of Ryan’s GOP super PAC in his offices. Ryan stepped out of the room, and Adelson cut the PAC a check for $30 million. Maybe there wasn’t an explicit quid pro quo, but that donation only came after Adelson received a massive tax break under the tax bill championed by Ryan.
Finally, we have Dobbs v. Jackson Women’s Health Organization (2022)—Samuel Alito’s opinion for the majority dripped with selective quotations and massive condescension in deciding to revoke the right of a woman to have an abortion. Overturning the fifty-year old, and repeatedly upheld, precedent of Roe v. Wade, Alito quoted a seventeenth-century lawyer, Sir Matthew Hale, throughout this atrocity.
It should be noted that Hale was a dreadful misogynist who created subjective requirements for the prosecution of accused rapists, as he was “very anxious about malicious women bringing accusations against innocent, well-bred men.” These requirements included: Did the woman scream during the assault? Were signs of physical violence present on the woman? Did the woman report the claim promptly (even though cultural mores leaned heavily against even admitting such a violation)? Did the woman have a good reputation? No such tests were required of men when accusing a woman of adultery. These tests for women, however, still exist in many parts of the globe today.
Roe was the product of a series of cases brought over the prior decade to the Court. With each decision that affirmed certain personal rights, the inevitable conclusion of those cases was that women would have a right to an abortion. A Court that had ruled so many times for reproductive rights under the Fourteenth Amendment could not suddenly slam on the brakes in Roe. There’s a lot of argument as to whether Roe was good law or not. What can be said about the decision is that Justice Blackmun, who authored it, had once upon a time been the in-house counsel for the famed Mayo Clinic. He leaned heavily upon his former colleagues there when writing the decision, weaving a thread between when a mother could solely determine what to do with a pregnancy and when the state began to have a legitimate interest in the future of the fetus. Blackmun’s formulation was that until 20 weeks, the mother had sole decision making power, and that after that point, states could enact reasonable restrictions, because it was approaching viability outside of the mother’s uterus. It did not preclude abortion after 20 weeks, but it did allow for more restrictions. It was reasonable, the conclusion of a justice who respected the law and doctors, and Alito tossed it out in favor of the doctrines of a man who was not American, who was dead when the Constitution was written, and who believed in witchcraft.
There’s more, far more I could write about, but these four cases demonstrate the modern court’s gross disrespect for precedent, putting personal political beliefs above their jobs, accepting hundreds of thousands of dollars in free gifts, and inventing legal tests to fit their harebrained decisions. Their standing is at a record low, rightfully so. As their term begins on Tuesday, keep this in mind. They are a political body, and maybe we need to update Andrew Jackson’s phrase the next time they decide to flip the Constitution on its head with an egregious ruling that defies history and common sense. “John Roberts has made his decision, now let him enforce it.”