The Supremes

"There is a higher court than courts of justice and that is the court of conscience." Mahatma Gandhi (1869-1948)

Aha…I got your attention! While one of my all-time favorite singing groups, I’m, unfortunately, not going to write about Diana Ross and the Supremes but, instead, visit the other Supremes, the nine justices of the Supreme Court of the United States (SCOTUS) who have been the topic of much recent debate and notoriety. As I’ve been writing about Donald Trump for the past 16 months, I thought, at least for one week, I’d give him a break!

SCOTUS is the nation’s highest court, serving as the final arbiter of American law and the guardian of our Constitution. They usually hear opinions from lower District and circuit courts when things are in working order. My hypothetical ( a word lawyers often use) here is whether SCOTUS needs another look at, a re-do, a reassessment. Mind you, I’m not advocating for the overthrow of this austere body with its black robes, conservative majority and its ethnic diversity not exactly reflective of that of our country. I’m just questioning its recent decisions, abandonment of precedent and stare decisis and major reversals of settled law.

The members of the Court are lifetime appointees, hand picked by the Chief Executive of that moment, usually with a mind that his or her appointee will reflect presidential opinion and inclination. It is extremely rare that any of them has been removed from the bench, usually through retirement or death. The only Justice I can think of that had stepped down due to scandal was Abe Fortas in 1969 for accepting $20,000 annual fees from the Louis Wolfson Foundation when the latter was being investigated for federal crimes. One other Justice, Samuel Chase was impeached in 1804 but never convicted and who remained on the bench.

Today’s Justices have some dodgy conflicts such as Alito and Thomas who have been accused of accepting luxury trips from people with business before the court. Clarence Thomas’s wife, Ginny, a prominent conservative activist, was involved in questioning the defeat of Donald Trump in the 2020 election. Likewise, Alito produced controversy by flying the American flag upside down, characteristic of the “Stop the Steal” movement and flying the pine tree flag that was symbolic of white Christian Nationalism. Justice Kavanaugh had a rough road to confirmation, having been accused of sexual impropriety while in high school (remember Christine Blasey Ford among others?).

It’s a fact that the loser of the popular vote for President got to select three lifetime SCOTUS Justices. Does this render a good argument for the elimination of the Electoral College? While a President serves for 4-8 years, a Supreme Court Justice’s “reign” can be multi-generational! Each of the nominees, during their confirmation hearings, carefully guarded their personal opinions about all sorts of matters, promising to be balanced in their opinions. Kavanaugh, for instance, refused to answer any questions about matters he considered hypothetical. He also had assured Sen. Susan Collins that he considered Roe v. Wade settled law. Goresuch, for his part, had an easier ride but it was marred by the fact that the Senate Judiciary Committee, evoking the “Biden Rule”, barred Obama’s nominee, Merrick Garland, from ever having a hearing no less appointments with the Committee members. Mitch McConnell stopped the nomination in its tracks as it was “an election year”. We later saw the same committee eschew the Biden Rule by sweeping Amy Coney Barrett into a seat on the bench at warp speed during an election year. Sidebar: My personal opinion is that, while Garland made an awful Attorney General, I think he would have made an excellent Supreme Court Justice.

So what am I getting at here? All of the above musings point to some of the worst and most horrific Supreme court rulings we’ve ever seen.

• The overturning of Roe V. Wade by Dobbs v. Jackson (6-3)

• The ruling that presidents have broad immunity from criminal prosecution for “official acts’ (6-3)

• Overruling a lower court’s prohibition on racial profiling in Noem v. Vasquez-Perdomo (6-3)

• Weakening of the Voting Rights Act in Louisiana v. Callais (6-3) this was probably the last nail in the coffin for the historic voting Rights Act signed by Lyndon Johnson. So much for settled law!

• Chiles v. Salazar where it was decided that banning conversion therapy violates the First amendment. (8-1) My personal opinion is that conversion therapy is dangerous and has unproven scientific validation..

I’m anxiously awaiting their decision on the legality of birthright citizenship! How many people will be robbed of their citizenship if this decision goes the wrong way.

There are arguments to be made in favor of term limits on the court, imposing ethics codes and limiting “shadow docket” abuses where normal briefings and arguments are skipped, a practice this present court is known for. Other cases can be made for expanding the size of the court, and allowing cameras to broadcast oral arguments, thus increasing the transparency of the court.

I’ve written this, not as an attorney (which I’m not) but as an involved citizen watching out for justice…and injustice. As Gandhi inferred, the court of conscience is of the most import for our nation.

“It’s been a long, a long time coming, but I know a change gon’ come, oh yes it will”…..

A Sam Cooke song recorded by the Supremes during the Motown era.