The Legacy of the Roberts Court
There are 248 days until the 2024 Presidential Election. The primaries are proceeding but we already know the nominees. We also know the “Big Issues” that will dominate the news between now and November 5th. Rather than belabor any of that, I’d like to take a step back and note an item that may not be on everyone’s radar but should be. The Roberts Supreme Court has crossed the line. Their blatant right-wing activism should, once and for all, seal the legacy of this Court.
Going back to the early 1990’s, comparisons between Roe v. Wade and the Dred Scott case were raised (by Antonin Scalia!), attempting to define what a Constitutional right to due process and privacy might be. I won’t belabor the arguments surrounding Substantive Due Process, but I will provide historical background on why I believe Dred Scott, Roe and now, the Dobbs decision, as well as the Roberts’s Court ruling kicking the Trump Presidential Immunity claim down the road, all combine to indelibly stain SCOTUS as an institution --- and endanger our democracy.
For those who don’t recall their high school U.S. history course, the Dred Scott decision, handed down by the Roger Taney (pronounced Tawn-ey) Supreme Court in 1857 was a significant step toward Civil War. Here’s the Wikipedia summary:
In March 1857, the Supreme Court issued a 7–2 decision against Scott. In an opinion written by Chief Justice Roger Taney, the Court ruled that people of African descent "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States"; more specifically, that African Americans were not entitled to "full liberty of speech ... to hold public meetings ... and to keep and carry arms" along with other constitutionally protected rights and privileges
Taney supported his ruling with an extended survey of American state and local laws from the time of the Constitution's drafting in 1787 that purported to show that a "perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery". Because the Court ruled that Scott was not an American citizen, he was also not a citizen of any state and, accordingly, could never establish the "diversity of citizenship" that Article III of the U.S. Constitution requires for a U.S. federal court to be able to exercise jurisdiction over a case.
Wikipedia also notes:
The decision is widely considered the worst in the Supreme Court's history, being widely denounced for its overt racism, judicial activism, poor legal reasoning, and crucial role in the start of the American Civil War four years later.
Legal scholar Bernard Schwartz said that it "stands first in any list of the worst Supreme Court decisions". A future chief justice, Charles Evans Hughes, called it the Court's "greatest self-inflicted wound"
Scalia’s argument that the Roe abortion decision paralleled Dred Scott was primarily based on the concept that the Supreme Court, in both instances, had overextended its powers and was using an implied application of “citizenship” ---- and, therefore, the “right to privacy” associated with that “citizenship.” Scalia, of course, was quite intentionally trying to muddy the waters surrounding the Roe decision (somehow linking it to slavery) and the Court barely ruled (5-4) to sustain a woman’s right to control her own body. Therein lies the stronger comparison between Roe and Dred Scott. In supporting an extremely strict interpretation of the Constitution --- as conservatives and right-wing extremists are wont to do --- there is an overt desire to control the bodies of people who are, somehow, not equal to (White) Men. By issuing the Dobbs decision and tossing abortion back to the States --- knowing full well how many of those States would make it impossible for Women to gain access to the health care they need --- the Roberts Court clearly harkened back to the Taney Court, asserting the Supreme Court’s power to determine who controls the bodies of those perceived as “less than.”
There are purported religious arguments regarding abortion, of course, but the Separation Clause clearly removes those arguments from the purview of the Court. Or, in the case of the Roberts Court, does it? With the addition of Trump’s three Roman Catholic Justices (Gorsuch, Kavanaugh, Barrett) joining three conservative Catholics already there (Roberts, Thomas, Alito), it appears the Court has taken an extreme turn away from the Separation Clause. Even if that is not the case, the Dobbs decision, overturning Roe (“established law” that Gorsuch, Kavanaugh, and Barrett implied was inviolate during their confirmation hearings!), creates a clear parallel between the Roberts Court and the Taney Court, for all of history to see.
And now, in providing Trump with exactly what he wanted --- a long delay for his January 6th Federal Criminal Trial --- the Roberts Court blatantly revealed their partisan colors. Given that Trump’s case --- that Presidents have total immunity from criminal charges (unless impeached and convicted by the Senate) --- is absurd, the Court’s decision is manifestly political. Trump lost the case in court, lost it (unanimously) in Appeal, but now, miraculously, the Roberts Court not only agrees to hear the case but also schedules Oral Arguments in late April, essentially guaranteeing that the trial, should it even begin in 2024, will clearly occur during this year’s Election Cycle. Even Judge Chutkan’s desire to start the trial as soon as possible cannot supersede the clear conflict conducting it during September and October would present. If this isn’t the nail in the Roberts Court Legacy, I don’t know what else one would need.
All told, going back to Citizens United, it’s easy to document where the Roberts Court stands --- regarding individual rights vs. (dark) monied interests, Voting Rights, Affirmative Action and LBGQT rights (except for Obergefell/same-sex marriage ---- which Dobbs has now jeopardized!). This Court, historically, is on track to match the Taney Court as one of the most narrow-minded and bigoted in the history of the nation. Keep in mind, the Taney Court was operating in the middle of the 19th century! But that is, of course, where Alito, Thomas, Gorsuch, Kavanaugh, Barrett, and Roberts are most comfortable. This all began with Ronald Reagan, of course, and his passionate animosity for the liberal/liberation movements of the ‘60’s and his “revolution” (more “devolution”) to un-do the strides made by minorities, women, gays, et al. It has taken forty-four years, but the Roberts Court is poised to catapult the society (against its will --- check the polling on Roe) back to that mythological immediate post-WWII period. That’s the “Great” America that Reagan, and then Trump, wanted to make again. The America of Joe McCarthy’s Red Scare, of Jim Crow segregation, of no rights for Women or LBGQT citizens as well as countless other minorities. The America where White, Christian men held power, set policy, and oversaw the world.
Then, however, the Warren Court, the Civil Rights movement, the anti-War movement, the Women’s Liberation Movement, the Gay Rights Movement turned that old While Male world on its head. The ‘60’s and ‘70’s, when the United States was energized by movements aimed at (dare I say it) Diversity, Equity, and Inclusion (DEI) became the “enemy” to an ever-threatened White Male Establishment (there, I’ve said it again!), requiring first Reagan, and then Trump, promise to “Make America Great Again.” You needn’t be a cryptographer to break that Code. And so, we now find that the Supreme Court, one of the three branches of our government created to protect our Rights, has thrown in with the MAGA crowd and is doing its damnedest to turn back the clock. And that’s why the Roberts Court will, historically, live in infamy, like the Taney Court.
The United States survived the Taney Court (requiring a Civil War to do so, of course) and I’m hoping we will prevail over the Roberts Court, too. Defeating Donald Trump in November would do a great deal to cut the legs out from under this Court. If the other two branches are secured by politicians sympathetic to the Rights of all our citizens, laws can be passed, bills can be signed, actions will be taken to insure the citizens this court, as malignant as it is, cannot suppress basic freedoms and rights the Constitution guarantees. It will require action by the electorate, however, since the Court is doing all it can to insulate Public Criminal #1 from ever facing justice before November 5th. That action, along with Citizens United, Shelby, and Dobbs, will provide historians for debate fodder: which Court was worse, Taney or Roberts?
That Art/Life Imitation Thing