March 12, 2019
Supreme Court integrity
Prof. Arthur Kane Scott
The United States has historically claimed that it is a nation of laws. That neither wealth, nor power, nor position/privilege preempts the rule of law. This belief in justice embedded in law constitute the overriding principles that sustains the country. Indeed, this core value flows from the 1776 Declaration of Independence with its emphasis on equality. Equality before the law, and due process is the sine qua non of the 14th Amendment, and has historically been a major factor in leveling the playing field for Blacks, women, LGBTD, and others. It was reaffirmed in Lincoln`s Gettysburg address, and by Martin Luther King`s, “I have a Dream," speech.
To sustain the rule of law, fairness requires that the courts be objective and impartial in their discernment. The independence of the judiciary goes back to John Marshall, first Supreme Court Justice, who argued that the judiciary was the third branch of government, equal to and wholly independent of the other two branches. Part of its independence was guaranteed by life-time appointments. Its role was to act as arbiter and umpire over the constitution and mores/laws of the nation. To do its task of adjudicating ,its membership ideally must be beyond reproach.
Like all human institutions, the courts have floundered, and even has been politicized. One of the worse times came in 1896, in Plessy v. Ferguson, when the Supreme Court ruled,“that separate but unequal,” was not a violation of the constitution. It was compounded in the 1899 case Cumming v. Richmond County Board of Education, when the High Court ruled in favor of segregated schools. This ushered in the era of Jim Crow that extended throughout the country until the civil rights movement of the 50`s burst upon the scene led by Martin Luther King`s Southern Christian Leadership Conference leading to the Civil Rights Act of 1964 and Voting Rights in 1965. A significant factor in facilitating integration was the action of the Earl Warren Court which ended segregated schools in the landmark case of 1954, Brown v. Board of Education, on the grounds that segregation did irreparable harm to Black identity
Since the 1970s, the Supreme Court, however, has shifted increasingly to the Right reflecting a Conservative ascendancy that began with President Ronald Reagan election in the 80s. Nativism of the Rightwas a reaction tothe changing demography in America, the “metoo/times –up”movements, the emergence of talk radio with its emphasis on white nationalism, growing conflict over abortion/right-to-life, immigration and globalism, and the concern about the geopolitics of oil versus climate.
The Trump Presidency and Mitch Mc Connell, Senate Republican Speaker, have sought to return American culture to the perceived halcyon days of the 1950s by politicizing or stacking the courts through mass appointments of ultra-conservatives, many of whom have very little experience in jurisprudence.The McConnell strateg yconsists of slowing down the pace of political, socio-economic change within America by packing the courts with appointments from the older Boomer (1944-64) and xers (1964-84) generations, whose thinking on race, sexuality, income equity, guns, climate, marriage and family, is much more traditional than todays Millennials (1984-2004) and Plurals (2004-24).
This cultural divide was played out during the Brett Kavanaugh hearing about his qualifications to sit on the Supreme Court. Kavanaugh was accused of sexual molestation by Christine Blasey Ford. Instead of recusing himself to protect the Court`s integrity, he insisted that he was innocent. Probably at the prodding of President Trump, who endorsed Kavanaugh, in part, to impede a possible impeachment. Creating more difficulty for the integrity of the Supreme Courtis the checkered career of Justice Clarence Thomas who was accused by Anita Hill of making improper sexual advances when Thomas headed the U.S.Equal Employment Opportunity Division in 1981-82. His presence along with Kavanaugh raises credibility issues for the John Roberts` Court about women`s rights.
Compounding the Supreme Court`s credibility was McConnell`s insistence that the Republican Controlled Senate would not consider any appointments until after the Presidential election of 2016. This meant that Presidents Obama moderate nominee, Merrick Garland, chosen to replace, Justice Antonin Scalia,was still-born. This McConnell strategy enabled Donald Trump to appoint conservative, Neil Gorsuch from Colorado, to Supreme Court. With the recent Kavanaugh appointment, the Supreme Court has shifted even more to the right to the applause of conservatives, especially Evangelical Christians and anti-abortionist Catholics, who are opposed to women`s right to choose, and are fervent supporters of Trumpets Wall. Even more frightening to judicial fairness is the prospect that Justice, Ruth Bader Ginsberg, because of health reasons, might need to step down.
At a deeper level what is clawing away at the integrity of the Court is the role of the conservative Federalist Society, which is very strict in its interpretation of the constitution and law in general. It has a wide reach in many law schools and throughout the judiciary. Prominent Supreme Court members included: Samuel Alito, Clarence Thomas, Neil Gorsuch and Antonin Scalia.
Don McGahn, Trumps counsel, a Federalist, has been a major force in shifting the judiciary to the right. He was a key player behind the appointments of Gorsuch and Kavanaugh and largely responsible for an estimated appointment of 70 judges. McGahn likewise has been vehement in his opposition to campaign finance reform when he was a member of the Federal Election Commission. He has close ties with the powerful Mercer family that funds Steve Bannons Breitbart radio station,and promotes the conservative mantra of “the less government the better.” A fascinating commonality that binds McGahn, Gorsuch and Kavanaugh together is their Catholic background, perhaps explaining their views on women`s right to choose.
The Robert`sCourt finds itself at a critical juncture in American history with many challenging issues pending that can have profound consequences on the future of the Nation: gerrymandering, limits to Presidential power (national emergency), women`s right to choose, money in politics (Citizens United), Dodd/Frank, climate change/carbon tax, consumer protection, gun control, citizenship identity on 2020 census, unions, and prisoners right-to- vote. Many of these issues eventually will work their way to the Supreme Court for adjudication. How it responds and rules will have a profound impact on its credibility as an impartial institution known for discernment and wisdom. Hopefully, John Roberts, Supreme Court Justice and centrist, can steer the court to remain above the fray of politics as it hears these cases.
As the Trump Presidency unravels, the divide within American politics will intensify demanding an even handedness of the Supreme Court as the nation goes through this divisive crisis. The Supreme Court needs to rise above its liberal-conservative partisanship and act collectively in the best interests of the nation as a whole. It cannot allow itself to succumb to the Faustian epistemology of Trumpism in which lying, deception, and gotcha becomes the new jurisprudence. Instead, it needs to take a holistic view of what is best for the country: how it`s changing, and how the attitudes and concerns of the emerging generation are much different than the older generations. Alexander Hamilton, one of authors of the Federalist Papers arguing for a loose interpretation of the constitution, said it best: “I think the first duty of society is justice.”
We certainly need justice today; not more politics as reflected in the Manafort sentencing.
Arthur Kane Scott is Professor of Humanities and Cultural Studies at the Dominican University of California and Fellow of American Institute of International Studies.
The Journal of America Team:
Editor in chief:
Abdus Sattar Ghazali
Senior Editor:
Prof. Arthur Scott
Disclaimer and Fair Use Notice: Many articles on this web site are written by independent individuals or organizations. Their opinions do not necessarily reflect those of the Journal of America and its affiliates. They are put here for interest and reference only. More details
Your donation
is tax deductable.
Article by
Journal Writes